author: LOWY, J.

text:
    COMMONWEALTH v. Shea BRAUNE.
    SJC-12514
    Supreme Judicial Court of Massachusetts, Essex..
    Argued October 4, 2018 Decided January 29, 2019
    Alexandra H. Deal, Boston, for the defendant.
    Philip A. Mallard, Assistant District Attorney, for the Commonwealth.
    Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
   LOWY, J.

The defendant, Shea Braune, was convicted of receiving stolen property and money laundering after she and her girlfriend, Romi Kimell, used over $ 300,000 in cash that Kimell had stolen from her mother and stepfather to fund a lavish lifestyle. In an ill-fated attempt to cover their tracks, Kimell gave a substantial amount of the stolen cash to Braune, who deposited it into her checking account through a series of transactions, each under $ 10,000, later claiming to have received the money in an inheritance. A subset of these deposits forms the basis for Braune's money laundering conviction. On appeal, Braune argues that the evidence was insufficient as a matter of law to establish "concealment" money laundering, in violation of G. L. c. 267A, § 2 (2) (ii) (A), where she openly deposited the money into her checking account using her own name. Because we conclude that the evidence was sufficient for a rational jury to conclude that Braune's deposits were designed, in whole or in part, to conceal the nature, location, source, ownership, or control of the stolen funds, we affirm.

Background. Viewing the evidence in the light most favorable to the Commonwealth, the jury could have found the following facts. In the fall of 2013, when the victims, James and Janice Welling, went to stay at their Florida home for the winter, they left over $ 300,000 in cash (packaged in stacks of fifty and one hundred dollar bills), along with a few items of Janice's jewelry, in a box that was taped shut and stored in a locked closet in the master bedroom of their North Andover home. The only other person who knew about the box was Janice's daughter, Kimell.

Kimell had enjoyed a close relationship with her mother and James, who was Kimell's stepfather, and the Wellings had provided significant financial support to Kimell throughout her life. However, the relationship had soured shortly before the time in question. While the Wellings were in Florida, Kimell began to remove cash from the box in the Wellings' master closet. Kimell provided some of the cash to Braune. Braune then made a series of deposits into her checking account, each under $ 10,000, using the stolen money.

At a certain point, Kimell took the remaining contents of the box and replaced them with a duffel bag full of copy paper, resealing the box and restoring it to its place in the closet. Kimell informed her mother that she and Braune were moving to California and that Braune had received a large inheritance. During and after the move to California, Braune's pattern of making successive, large cash deposits -- each under $ 10,000 -- continued, as did a pattern of lavish spending by Kimell and Braune. The Wellings did not discover that the cash and jewelry were missing until October 2014, and did not immediately report the incident to police. Instead, they confronted Kimell about the missing money, and when she denied any involvement, they hired a private investigator to look into the matter.

In July of 2015, Kimell filed a petition for bankruptcy in a Federal bankruptcy court in California. James intervened in that proceeding, and his attorney deposed Kimell and Braune. In their sworn deposition testimony, which was later entered as an exhibit in the criminal trial in Massachusetts, Kimell and Braune reiterated their claim that Braune had used money from an inheritance to support their lavish lifestyle.

Shortly after the defendant filed the petition for bankruptcy, the Massachusetts State police worked with law enforcement officials in California to execute a search of the home that Braune and Kimell shared in San Diego. Among other things, the police recovered, from Kimell's bedroom, jewelry matching that which Janice had reported missing; and from the closet in Braune's bedroom, a total of $ 130,110 in United States currency, stored in a backpack and a cardboard box and packaged mainly in stacks of fifty and one hundred dollar bills, consistent with James's description of the missing money.

Discussion. In assessing the sufficiency of the evidence, we ask "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (emphasis in original). Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Circumstantial evidence may be sufficient to prove guilt beyond a reasonable doubt, Commonwealth v. Grandison, 433 Mass. 135, 141, 741 N.E.2d 25 (2001), and the inferences drawn from such evidence "need not be necessary and inescapable, only reasonable and possible." Commonwealth v. Goddard, 476 Mass. 443, 449, 68 N.E.3d 1146 (2017), quoting Commonwealth v. Jones, 432 Mass. 623, 628, 737 N.E.2d 1247 (2000).

The Massachusetts money laundering statute, G. L. c. 267A, § 2, provides in relevant part:

"Whoever knowingly ... (2) engages in a transaction involving a monetary instrument or other property known to be derived from criminal activity ... (ii) knowing that the transaction is designed in whole or in part either to: (A) conceal or disguise the nature, location, source, ownership or control of the property derived from criminal activity; or (B) avoid a [Federal or State] transaction reporting requirement ... shall be guilty of the crime of money laundering ..."

Braune was convicted of concealment money laundering in violation of G. L. c. 267A, § 2 (2) (ii) (A).

Here, at least three forms of evidence typically associated with concealment money laundering were present: (1) the false statements made by the defendant and Kimell, initially to Kimell's mother and then later in sworn deposition testimony, that the money was part of an inheritance that Braune received from her grandfather, suggested an intent to conceal; (2) the structure of the defendant's deposits, which were staggered over time and confined to amounts below the reporting threshold, supported an inference of a design to conceal; and (3) the use of the defendant as a third party to deposit the money supported an inference of an intent to distance the money from Kimell and the Wellings, in other words, an intent to conceal the nature, source, ownership, or control of the stolen funds. As discussed below, the combination of these factors persuades us that the evidence was sufficient to establish a design to conceal under G. L. c. 267A, § 2 (2) (ii) (A).

The language of § 2 (2) (ii) mirrors the language of the Federal money laundering statute, in particular its requirement that the defendant engage in the subject transaction "knowing that the transaction is designed in whole or in part ... (i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity; or (ii) to avoid a transaction reporting requirement under State or Federal law." 18 U.S.C. § 1956(a)(1)(B) (2012). Where, as here, our State statute "largely replicates" a cognate provision of Federal law, we consider the Federal courts' interpretation of the Federal statute "highly persuasive" in interpreting our own law. Commonwealth v. Eberhart, 461 Mass. 809, 815, 965 N.E.2d 791 (2012), quoting Commonwealth v. Colon, 81 Mass. App. Ct. 8, 12, 14, 958 N.E.2d 56 (2011).

In Cuellar v. United States, 553 U.S. 550, 556-557, 128 S.Ct. 1994, 170 L.Ed.2d 942 (2008), the United States Supreme Court interpreted the "designed ... to conceal" requirement of a neighboring provision of the Federal money laundering statute, 18 U.S.C. § 1956(a)(2)(B)(i), which applies to transportation money laundering rather than transaction money laundering. More specifically, the Court addressed whether evidence that the defendant hid the proceeds of illicit drug transactions in a secret compartment of a vehicle while transporting the funds across the border to Mexico was sufficient to establish a design to conceal. Id. at 553-554, 561, 128 S.Ct. 1994.

The Court observed that "when an act is 'designed to' do something, the most natural reading is that it has that something as its purpose." Id. at 563-564, 128 S.Ct. 1994. Thus, in the context of concealment money laundering, " 'design' means purpose or plan; i.e., the intended aim of the transportation." Id. at 563, 128 S.Ct. 1994. Accordingly, the Court held that concealment money laundering "requires proof that the purpose -- not merely effect -- of the transportation was to conceal or disguise a listed attribute" of the funds. Id. at 567, 128 S.Ct. 1994.

In so holding, the Cuellar Court rejected the proposition that the "designed ... to conceal" element of the Federal money laundering statute requires the prosecution "[to] prove that the defendant attempted to create the appearance of legitimate wealth." Id. at 557, 128 S.Ct. 1994. Rather, in Cuellar, "what the Government had to prove was that [the defendant] knew that taking the funds to Mexico [i.e., the transportation] was 'designed,' at least in part, to conceal or disguise their 'nature,' 'location,' 'source,' 'ownership,' or 'control.' " Id. at 562, 128 S.Ct. 1994.

On the facts presented in Cuellar, the Court held that although evidence of the secretive manner in which the funds were transported "was plainly probative of an underlying goal to prevent the funds from being detected while he drove them from the United States to Mexico," id. at 566, 128 S.Ct. 1994, that evidence was insufficient, standing alone, to establish that the transportation of the money was designed to conceal a listed attribute of the funds, especially where the government's own expert witness had testified that the purpose of the transportation was to compensate the leaders of the drug operation. Id. at 566-568, 128 S.Ct. 1994. Simply put, "[t]here is a difference between concealing something to transport it, and transporting something to conceal it, ... that is, how one moves the money is distinct from why one moves the money" (emphasis in original; quotation and citation omitted). Id. at 566, 128 S.Ct. 1994.

To be clear, "[c]oncealing or disguising a listed attribute need be only one of the purposes of the transportation [or transaction]." Id. at 566 n.7, 128 S.Ct. 1994. See United States v. Faulkenberry, 614 F.3d 573, 586 (6th Cir. 2010), quoting 18 U.S.C. § 1956(a)(1)(B) (holding, post- Cuellar, in case of transaction money laundering under 18 U.S.C. § 1956 [a][1][B], that concealment need not "be the only purpose of the transaction," where "the statute requires only that the transaction be designed 'in whole or in part' to conceal" [emphasis in original] ). So it is with G. L. c. 267A, § 2 (2) (ii), which replicates the phrasing "in whole or in part" in its "designed ... [to] conceal" requirement.

Still, taken to the extreme, almost any transaction involving stolen funds could be characterized as designed, at least in part, to conceal a listed attribute of the funds, because every transaction takes the money one step further from its illicit source. Cf. United States v. Valdez, 726 F.3d 684, 690 (5th Cir. 2013), quoting United States v. Willey, 57 F.3d 1374, 1384 (5th Cir.), cert. denied, 516 U.S. 1029, 116 S.Ct. 675, 133 L.Ed.2d 524 (1995) ("In one sense, the acquisition of any asset with the proceeds of illegal activity conceals those proceeds by converting them into a different and more legitimate-appearing form" [emphasis in original] ).

Recognizing this, United States Courts of Appeals in several circuits have taken different approaches to grafting a workable limiting principle onto the "designed ... to conceal" element of the Federal money laundering statute. We find the United States Court of Appeals for the Sixth Circuit's formulation, which holds that concealment must be "an animating purpose" of the transaction, Faulkenberry, 614 F.3d at 586, to be instructive in this regard. In such an analysis, "[c]oncealment -- even deliberate concealment -- as mere facilitation of some other purpose, is not enough to convict" (emphasis in original). Id. Rather, what the prosecution must show is that concealment was one of the purposes that motivated or "drove [the defendant] to engage in the transaction in the first place." Id. See Webster's Third New International Dictionary 85-86 (1969) (defining "animate" as "to move to action: motivate, prompt, incite: stir up").

Moreover, evidence of the "structure" of a transaction, that is, evidence of the manner in which a transaction was carried out, in terms of timing, amount, complexity, use of a third party, or some other relevant aspect, may be probative of whether the transaction had concealment as one of its purposes. See Faulkenberry, 614 F.3d at 586, quoting Cuellar, 553 U.S. at 565, 128 S.Ct. 1994 (noting that because " 'purpose and structure are often related[,]' ... proof that a transaction was structured to conceal a listed attribute of the funds can yield an inference that concealment was a purpose of the transaction"). See also United States v. Elder, 682 F.3d 1065, 1072 (8th Cir. 2012) (evidence sufficient for concealment money laundering where, among other things, defendant "instruct[ed] his intermediary ... to limit bank deposits to amounts less than $ 10,000"); Brown, 553 F.3d at 787 (evidence sufficient for concealment money laundering where "transactions were in cash so that they were not easily tracked" and "[m]ost deposits were below ten thousand dollars so as to avoid setting off any reporting requirements that might then lead to unwanted attention concerning the funds' nature"); United States v. Villarini, 238 F.3d 530, 533 (4th Cir. 2001) (evidence sufficient for concealment money laundering where defendant "did not deposit the entire $ 83,000 in a single bank transaction, and instead made four transactions, each involving less than $ 3,000, at two-to-four-week intervals").

In sum, we conclude that to satisfy the requirement under G. L. c. 267A, § 2 (2) (ii) (A), that a transaction be "designed in whole or in part ... [to] conceal or disguise the nature, location, source, ownership or control" of stolen funds, the Commonwealth must demonstrate that concealment was an animating purpose of the transaction. In other words, concealment must be proved to have been one of the purposes that motivated or drove the defendant to engage in the transaction, not merely an incidental attribute or effect of the transaction. In making this determination, evidence that the structure of the transaction served to conceal a listed attribute of the funds will be probative of whether concealment was an animating purpose of the transaction.

The defendant suggests that allowing evidence of structure to support an inference of a design to conceal improperly conflates subparts (A) (the "concealment" prong) and (B) (the "structuring" prong) of G. L. c. 267A, § 2 (2) (ii), and is contrary to legislative intent. We disagree. That the evidence used to convict under subparts (A) and (B) may overlap does not vitiate the Legislature's intent to create two separate crimes. This is so because, although evidence of structure, in and of itself, may be sufficient to show an intent to avoid a reporting requirement under G. L. c. 267A, § 2 (2) (ii) (B), such evidence is probative, but generally not sufficient, standing alone, to establish a design to conceal under G. L. c. 267A, § 2 (2) (ii) (A). Cf. Cuellar, 553 U.S. at 566, 128 S.Ct. 1994 (noting that "secretive aspects" of transportation "may be circumstantial evidence that the transportation itself was intended to avoid detection of the funds," but that "its probative force, in that context, is weak"); Faulkenberry, 614 F.3d at 586 (noting that, while evidence of structure "can yield an inference" of design to conceal under 18 U.S.C. § 1956 [a][1][B], it is not "enough" that transaction was "structured to conceal the nature of the illicit funds" [emphasis in original] ); United States v. Garcia-Emanuel, 14 F.3d 1469, 1478 (10th Cir. 1994) (noting that evidence of "pattern of deposits," each under $ 10,000, would provide "straightforward" proof under § 1956 [a][1][B][ii], and although inference is "considerably weaker" under § 1956 [a][1][B][i], it is "[n]evertheless" evidence of design to conceal).

In this respect, our holding is consistent with the familiar and well-established principle of criminal law that "[i]ntent is a factual matter that may be proved by circumstantial evidence" (citation omitted). Commonwealth v. Walters, 472 Mass. 680, 693, 37 N.E.3d 980 (2015). See Commonwealth v. Ellis, 356 Mass. 574, 578-579, 254 N.E.2d 408 (1970) ("A person's ... intent ... is a matter of fact, which may not be susceptible of proof by direct evidence. In that event resort must be had, and frequently is had, to proof by inference from all the facts and circumstances developed at the trial" [citation omitted] ); Commonwealth v. Hayes, 114 Mass. 282, 285 (1873) ("intent may, and generally must, be proved by circumstantial evidence").

Moreover, to be relevant and admissible, there is no requirement that an individual piece of circumstantial evidence be sufficient, standing alone, to prove a material fact. See Commonwealth v. Pickering, 479 Mass. 589, 597, 97 N.E.3d 359 (2018) ; Commonwealth v. Gerhardt, 477 Mass. 775, 782, 81 N.E.3d 751 (2017) ; Commonwealth v. Sicari, 434 Mass. 732, 750, 752 N.E.2d 684 (2001), cert. denied, 534 U.S. 1142, 122 S.Ct. 1096, 151 L.Ed.2d 993 (2002). "An item of evidence, being but a single link in the chain of proof, need not prove conclusively the proposition for which it is offered" (footnote omitted). 1 McCormick on Evidence § 185, at 999 (K.S. Broun ed., 7th ed. 2013). "A brick is not a wall." Id. at 1000.

The question we must consider is whether the circumstantial evidence in this case, taken together, was sufficient to permit a rational jury to conclude that an animating purpose of the alleged money-laundering deposits was to conceal a listed attribute of the funds. We conclude that it was.

In Garcia-Emanuel, 14 F.3d at 1475, the United States Court of Appeals for the Tenth Circuit noted that "a variety of types of evidence have been cited by this and other circuits as supportive of evidence of intent to disguise or conceal," including

"statements by a defendant probative of intent to conceal; unusual secrecy surrounding the transaction; structuring the transaction in a way to avoid attention; depositing illegal profits in the bank account of a legitimate business; highly irregular features of the transaction; using third parties to conceal the real owner; a series of unusual financial moves cumulating in the transaction; or expert testimony on practices of criminals" (footnotes omitted).

Id. at 1475-1476. Here, as noted above, the Commonwealth's case included at least three of the categories of evidence typically associated with concealment money laundering: (1) "statements by a defendant probative of intent to conceal"; (2) "structuring the transaction in a way to avoid attention"; and (3) "using third parties to conceal the real owner". Id. We conclude that this evidence, taken together, was sufficient to establish the "designed ... [to] conceal" element under G. L. c. 267A, § 2 (2) (ii) (A). Our conclusion finds support in cases from several Federal Courts of Appeals that were decided on similar facts. See Brown, 553 F.3d at 787 (evidence sufficient for concealment money laundering where defendant engaged in cash transactions, most of which were below $ 10,000, "to avoid setting off any reporting requirements"); United States v. Hall, 434 F.3d 42, 50 (1st Cir. 2006) (evidence sufficient to support concealment money laundering counts where defendant made loans to third parties, including his girlfriend, falsely representing that money came from inheritance, and in one instance, stating purpose of loan was to "get some of his money more legal"); Willey, 57 F.3d at 1387 (evidence sufficient to support concealment money laundering counts where defendant used transfers to and among third parties, including his girlfriend, to "move[ ] the money further away from [himself]").

Finally, we reject the defendant's argument that the rule of lenity requires us to rule in her favor. The rule of lenity "is a guide for resolving ambiguity, rather than a rigid requirement that we interpret each statute in the manner most favorable to defendants." Commonwealth v. Roucoulet, 413 Mass. 647, 652-653, 601 N.E.2d 470 (1992), quoting Edgartown v. State Ethics Comm'n, 391 Mass. 83, 90, 460 N.E.2d 1283 (1984). We find no ambiguity to resolve in the terms of G. L. c. 267A, § 2 (2) (ii) (A), which closely track the cognate provisions of the long-standing and much interpreted Federal money laundering statute.

Conclusion. For these reasons, we conclude that the evidence was sufficient to support the defendant's money laundering conviction.

Judgment affirmed.

      For clarity, we refer to the couple either collectively as the Wellings, or individually by their first names.

      According to James, the box contained anywhere from $ 300,000 to $ 600,000, possibly more.

      James had made unwelcome sexual advances toward Kimell during an approximately eighteen-month period beginning in 2011, which Kimell had rejected. In addition, James had expressed disapproval of Kimell's romantic relationship with Braune.

      The jury heard evidence that cash transactions over $ 10,000 must be reported to the Federal government. See 31 U.S.C. § 5313(a) (2012) ; 31 C.F.R. § 1010.311 (2013).

      The jury saw date-stamped, security-camera footage of Kimell leaving the Wellings' house in North Andover on April 27, 2014, with a large black garbage bag over her shoulder.

      The two stayed at expensive hotels, took trips to Paris, Las Vegas, and Aruba, and purchased a new vehicle, among other large expenditures.

      Braune claimed to have received $ 75,000 in cash as an inheritance from her grandfather in 1998. She further claimed that she kept the money in a box and did not spend any of it until 2014, when she began to use it, along with about $ 15,000 in savings and other inheritance money, to pay for the expenses she and Kimell incurred during and after their move to California. However, Braune and Kimell's spending during the relevant time period exceeded $ 250,000, not including over $ 130,000 in cash that the police later recovered from Braune.

      The first prong of G. L. c. 267A, § 2, omitted in the text, deals, broadly speaking, with "transportation" money laundering, rather than "transaction" money laundering. Under the umbrella of "transaction" money laundering, there are two broad subcategories: § 2 (2) (i), omitted in the text, which deals with "promotion" money laundering; and § 2 (2) (ii), reproduced in the text, which itself has two subparts: subpart (A), which deals with "concealment" money laundering; and subpart (B), sometimes referred to as the "structuring" prong, which deals with transactions designed to avoid a State or Federal reporting requirement.

      The Commonwealth originally proceeded under subparts (A) and (B) of G. L. c. 267A, § 2 (2) (ii). But after the trial judge found that there was insufficient evidence under subpart (B) (the "structuring" prong) as to any transaction occurring prior to the date that Kimell was recorded leaving the house with the garbage bag, the Commonwealth elected to proceed under subpart (A) (the "concealment" prong) as its sole theory of liability.

      We need not consider whether any one of these factors, in isolation, would be sufficient to convict.

      Because the language of the "designed ... to conceal" requirement in 18 U.S.C. § 1956(a)(2)(B)(i) is identical to that in § 1956(a)(1)(B)(i), United States Courts of Appeals have consistently held that the holding in Cuellar v. United States, 553 U.S. 550, 128 S.Ct. 1994, 170 L.Ed.2d 942 (2008), applies equally to cases involving transaction money laundering under § 1956(a)(1)(B)(i). See, e.g., United States v. Faulkenberry, 614 F.3d 573, 586 (6th Cir. 2010) ; United States v. Cedeno-Perez, 579 F.3d 54, 60-61 (1st Cir. 2009), cert. denied, 558 U.S. 1127, 130 S.Ct. 1091, 175 L.Ed.2d 911 (2010) ; United States v. Brown, 553 F.3d 768, 786 n.56 (5th Cir. 2008), cert. denied, 558 U.S. 897, 130 S.Ct. 246, 175 L.Ed.2d 168 (2009).

      Thus, Braune's assertion, even if true, that the deposits were designed to allow the defendants to spend the money, does not end the inquiry.

      See, e.g., United States v. Cessa, 785 F.3d 165, 175-176 (5th Cir.), cert. denied sub nom. Trevino Morales v. United States, --- U.S. ----, 136 S.Ct. 522, 193 L.Ed.2d 411 (2015), quoting Brown, 553 F.3d at 787 (holding, post-Cuellar, that "the government must demonstrate that the charged transactions had the purpose -- not merely the effect -- of 'mak[ing] it more difficult for the government to trace and demonstrate the nature of th[e] funds' "); Faulkenberry, 614 F.3d at 586 (holding, post-Cuellar, that concealment must be "an animating purpose" of transaction); United States v. Johnson, 440 F.3d 1286, 1293 (11th Cir. 2006) (per curiam) (holding, pre-Cuellar, that "[t]here must be some evidence that the funds are more concealed after the transaction is completed than before"); United States v. Esterman, 324 F.3d 565, 573 (7th Cir. 2003) (holding, pre-Cuellar, that conviction under 18 U.S.C. § 1956 [a][1][B][i] requires "concrete evidence" of intent to conceal, whether direct or circumstantial); United States v. Garcia-Emanuel, 14 F.3d 1469, 1474, 1476 (10th Cir. 1994) (identifying, pre-Cuellar, "two disciplines" that courts enforce with respect to Federal money laundering statute: [1] "this is a concealment statute -- not a spending statute," and [2] "evidence of concealment must be substantial").

      As noted above, this does not require that concealment be the sole purpose -- or even the dominant or primary purpose -- of the transaction. See Cuellar, 553 U.S. at 566 n.7, 128 S.Ct. 1994 ; Faulkenberry, 614 F.3d at 586.

      The defendant originally challenged the Commonwealth's proof on multiple elements of the crime of money laundering. However, the defendant conceded certain points in her reply brief and indicated at oral argument that the only remaining question was whether the evidence was sufficient to show a design to conceal. To the extent the defendant continues to press any of the other arguments made in her opening brief, we reject them.

      While the evidence here was legally sufficient to prove concealment money laundering under G. L. c. 267A, § 2 (2) (ii) (A), it could well be described as overwhelming with respect to a charge of receiving stolen property over $ 250, in violation of G. L. c. 266, § 60. Here, the Commonwealth apparently inadvertently charged the defendant with receiving stolen property of $ 250 or less, rather than the more appropriate charge of receiving stolen property over$ 250.

      The defendant resists the characterization of her role as that of a third party to the underlying crime and argues that her straightforward, and easily traceable, deposits of the money into an account bearing her name constituted "transparent division or deposit" of the proceeds of their joint crime, not money laundering. United States v. Adefehinti, 510 F.3d 319, 322 (D.C. Cir. 2007). See United States v. Stephenson, 183 F.3d 110, 120 (2d Cir.), cert. denied, 528 U.S. 1013, 120 S.Ct. 517, 145 L.Ed.2d 400 (1999) (gathering cases in support of proposition that "[s]ubsection [i] of the money laundering statute does not criminalize the mere spending of proceeds of specified unlawful activity"). However, based on this record, a rational jury could have concluded that it was Kimell who stole the cash from her mother and stepfather, and that Kimell then gave some of the cash to the defendant to deposit, in an attempt to conceal the source (or another listed attribute) of the funds. The fact that the defendant did not conceal her own identity when making the third-party deposit does not defeat the Commonwealth's claim that the transaction was designed to conceal a listed attribute of the funds in violation of the money laundering statute. See United States v. Tekle, 329 F.3d 1108, 1114 (9th Cir.), cert. denied, 540 U.S. 960, 124 S.Ct. 419, 157 L.Ed.2d 299 (2003), citing Hollenback v. United States, 987 F.2d 1272, 1278-1280 (7th Cir. 1993), and United States v. Lovett, 964 F.2d 1029, 1034 (10th Cir.), cert. denied, 506 U.S. 857, 113 S.Ct. 169, 121 L.Ed.2d 117 (1992) ("The necessary concealment ... is that of the source of the funds, not the identity of the money-launderer"). See also United States v. Hall, 434 F.3d 42, 50-51 (1st Cir. 2006) ("The [money laundering] statute criminalizes conduct designed to conceal or disguise the source of the drug proceeds even if the defendant does not conceal his own identity in the process"; collecting cases). To be sure, the defendant's efforts at concealment in this case did not succeed. But the relevant inquiry is one of purpose, not merely effect. Cuellar, 553 U.S. at 567, 128 S.Ct. 1994.


source: Caselaw Access Project

license: Public Domain

text:
    Kyl V. MYRICK v. APPEALS COURT.
    SJC-12402
    Supreme Judicial Court of Massachusetts.
    January 29, 2019
    Kyl V. Myrick, pro se.
    RESCRIPT
    Kyl V. Myrick appeals from a judgment of the county court denying, without a hearing, his petition for relief in the nature of mandamus. In his petition, Myrick sought an order directing the Appeals Court to recall the rescript that it issued after affirming, in an unpublished decision, a final judgment of the Superior Court. See Myrick v. Harvard Univ., 91 Mass. App. Ct. 1109, 81 N.E.3d 822 (2017) (affirming dismissal of complaint on statute of limitations grounds). We affirm.
    "Relief in the nature of mandamus is extraordinary, and is granted in the discretion of the court where no other relief is available." Montefusco v. Commonwealth, 452 Mass. 1015, 1015, 895 N.E.2d 478 (2008), quoting Murray v. Commonwealth, 447 Mass. 1010, 1010, 852 N.E.2d 66 (2006). "When a single justice denies relief in the nature of mandamus, '[her] determination will rarely be overturned.' " Montefusco, supra, quoting Mack v. Clerk of the Appeals Court, 427 Mass. 1011, 1012, 695 N.E.2d 1074 (1998). "A complaint in the nature of mandamus is 'a call to a government official to perform a clear cut duty,' and the remedy is limited to requiring action on the part of the government official." Montefusco, supra, quoting Simmons v. Clerk-Magistrate of the Boston Div. of the Hous. Court Dep't, 448 Mass. 57, 59-60, 858 N.E.2d 727 (2006). The Appeals Court had no duty to recall the rescript, which court records show was duly issued in accordance with the rules of appellate procedure. To the extent that Myrick seeks an order directing the Appeals Court to reverse the judgment of the Superior Court, "mandamus will not issue to direct a judicial officer to make a particular decision or to review, or reverse, a decision made by a judicial officer on an issue properly before him or her." Montefusco, supra, quoting Callahan v. Superior Court, 410 Mass. 1001, 1001, 570 N.E.2d 1003 (1991). Moreover, mandamus is not "to be used as a substitute for ordinary appellate procedure." Myrick v. Superior Court Dep't, 479 Mass. 1012, 1012, 94 N.E.3d 838 (2018), quoting Rines v. Justices of the Superior Court, 330 Mass. 368, 371, 113 N.E.2d 817 (1953). Contrary to Myrick's suggestion, the fact that he had a separate appeal pending here in no way barred him from pursuing the ordinary process by applying for further appellate review.
    In sum, Myrick has not demonstrated any entitlement to relief in the nature of mandamus. The single justice properly denied relief.
    Judgment affirmed.

      The real party in interest, Harvard University, which was the defendant in the Superior Court action, was not named in the petition in the county court.

      This was apparently intended to enable Myrick to file a belated application for further appellate review.

      Both in his brief and in his petition, Myrick suggests repeatedly that the doctrine of present execution has been violated in this matter. The doctrine of present execution authorizes appellate review of interlocutory orders of the trial court in certain narrowly limited circumstances, see, e.g., Patel v. Martin, 481 Mass. 29, 32, 111 N.E.3d 1082 (2018), and has no applicability to an appeal from a final judgment of the trial court.


author: CYPHER, J.

text:
    COMMONWEALTH v. Fredys Alexander CHICAS.
    SJC-10986
    Supreme Judicial Court of Massachusetts, Suffolk..
    Argued November 9, 2018 Decided January 30, 2019
    Janet H. Pumphrey, Boston, for the defendant.
    Teresa K. Anderson, Assistant District Attorney, for the Commonwealth.
    Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.
   CYPHER, J.

A jury convicted the defendant, Fredys Alexander Chicas, of murder in the first degree by extreme atrocity or cruelty as a joint venturer for the killing of the victim. We consolidated the defendant's direct appeal with his appeal from the denial of his motion for a new trial. On appeal, the defendant contends that (1) he was denied his constitutional right to confront witnesses when the judge prohibited him from cross-examining several of the Commonwealth's witnesses on their citizenship statuses; and (2) the use of multiple interpreters by the judge violated his constitutional right to due process.

For the reasons stated infra, we affirm the defendant's conviction and the denial of the defendant's motion for a new trial. After a thorough review of the record, we also decline to exercise our authority under G. L. c. 278, § 33E, to grant a new trial or to reduce the verdict of murder in the first degree.

1. Background. We summarize the facts that the jury could have found, reserving pertinent facts for the discussion of the defendant's arguments. On Christmas Eve in 2005, the victim and the defendant attended a party at Jose Castillo's house in Chelsea. At some point in the evening, the victim, who was intoxicated, made inappropriate comments to the defendant's girl friend, Catea Travassas, and her sister, Lisette Santos. The victim also touched Travassas's buttocks. The defendant intervened and implored the victim not to disrespect Travassas. Eventually, tempers boiled over and the defendant punched the victim in the face. The fight escalated and other partygoers got involved, including the defendant's coventurer, Jesus Villanueva. The men brought the victim outside the house, where they hit him with bottles of beer.

After the fight, the victim ran away. He returned a short time later looking for his cellular telephone. He was not allowed back into the house, and a few men, including the defendant, went outside and began to kick the victim. As a result, the victim left and returned again. He started smashing Castillo's vehicle with rocks, a bottle, and a stick. The defendant and Villanueva confronted the victim. The defendant was armed with a baseball bat. The defendant beat the victim with the bat, and Villanueva kicked him. The victim ran away, but the defendant and Villanueva pursued him. The men caught the victim in a parking lot that was one and one-half blocks away. The defendant and Villanueva beat him with the bat and a stick then "left [him] ... [a]ll bloodied on the ground."

Approximately ten to fifteen minutes later, the defendant and Villanueva returned to the party with blood on their clothing. Castillo gave the defendant clean clothes and told him to change. The defendant stated: "I killed him"; "[w]e killed [him]"; and "don't talk about this." When Santos started crying, the defendant responded, "You don't have to be crying for that mother fucker."

After he changed his clothes, the defendant, Villanueva, the sisters, and another partygoer, Ricardo Mendoza, left the party. On the way to Mendoza's house, the defendant stopped his vehicle underneath a nearby bridge to retrieve the baseball bat used against the victim. The defendant was concerned that his fingerprints were on the bat. The defendant gave the bat to Mendoza and told him to hide it at his residence. The defendant threatened Santos, telling her that he would run her over if she told the police what had happened.

The defendant and Villanueva then returned to the parking lot. Upon arriving, the men realized that the victim was alive. The victim was speaking and moving. For the next ten minutes, the defendant hit the victim on the back and Villanueva hit him on the head. The defendant later told Santos that, "We [had] to kill him so he [would] not say anything."

The next morning, Santos witnessed Villanueva burning a wooden stick. Villanueva claimed that the stick had blood on it. Villanueva packed a bag of his belongings, and the defendant picked him up and took him to the bus station. Villanueva said that he was going to San Francisco and then returning to his native El Salvador. Although Villanueva was indicted for murder, he has not been seen since he left for San Francisco.

A few days later, the defendant, Travassas, Santos, and her boyfriend fled to New Jersey. During the trip, the defendant reiterated his threat to the group that no one should talk to the police or the same thing that happened to the victim would happen to them.

Two weeks later, the defendant turned himself in to the police. He told the others that he would tell the police that Villanueva killed the victim.

2. Discussion. a. Confrontation rights. In his direct appeal, the defendant contends that the judge violated his right to confrontation by limiting the cross-examination of several of the Commonwealth's witnesses. He argues that because a defendant is entitled to a reasonable cross-examination of a prosecution witness for the purpose of showing bias, the judge abused her discretion by precluding him from inquiring about the citizenship or immigration status of certain witnesses. The Commonwealth asserts that the judge properly exercised her discretion in limiting cross-examination because the citizenship or immigration status of the witnesses was not relevant. We review the judge's decision to limit the defendant's cross-examination for an abuse of discretion. See Commonwealth v. McGhee, 472 Mass. 405, 426, 35 N.E.3d 329 (2015).

The Commonwealth anticipated that six or seven of its witnesses would be undocumented immigrants. The Commonwealth disclosed that during trial preparation, a detective told one of those witnesses that the detective would be willing to write him a letter if he decided to apply for United States citizenship in the future. At trial, the defendant sought to ask all of the Commonwealth's witnesses whether they were citizens of the United States in an attempt to put forth the inference that they were undocumented and, because they were undocumented, they may be inclined to cooperate with the Commonwealth. When defense counsel began to cross-examine the first such witness, he asked whether the witness was a citizen of the United States. The Commonwealth objected, and the judge sustained the objection. During a sidebar discussion, the judge ruled that she would permit the defendant to probe a witness's citizenship status "in any instance where [he knew or had a good faith basis in believing that] there ha[d] been any discussion with any member of law enforcement about [the witness's] citizenship status." The judge allowed the defendant to explore "any conceivable bias" by asking whether a witness had "ever had any discussion with any of the police officers or the prosecutors in this case about [his or] her citizenship status." If the witness answered yes, and established a foundation for further inquiry, the judge would decide how much further the defendant would be permitted to explore.

The judge noted that the defendant did not have any legal authority to support his position that he should be allowed to question whether a witness was an undocumented immigrant on cross-examination. She concluded:

"[T]his is not a case where there is any evidence at all that any of these witnesses are testifying voluntarily for the Commonwealth. In other words, there is no potential hint here of an effort to curry favor from the Commonwealth; to the contrary. The record reflects, based on what I know pretrial, that there was an unwillingness -- I don't want to overstate this, but that there was an unwillingness on the part of the illegal aliens to cooperate with the government and testify, which seems to me to be logical.... So, again, my decision is grounded on the fact there is no controlling authority at the appellate level in the Commonwealth and the fact that in my view, the relevance, in terms of bias, is only tenuous; it's marginal, and that permitting that inquiry would be outweighed by the potentially harassing nature of this in terms of the witnesses."

The Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights entitle a defendant to cross-examine prosecution witnesses for bias or prejudice. Commonwealth v. Avalos, 454 Mass. 1, 6-7, 906 N.E.2d 987 (2009), citing Commonwealth v. Allison, 434 Mass. 670, 681, 751 N.E.2d 868 (2001). A judge may not "bar all inquiry into the subject" if the defendant demonstrates "a possibility" of bias. Commonwealth v. Magadini, 474 Mass. 593, 604, 52 N.E.3d 1041 (2016), quoting Commonwealth v. Tam Bui, 419 Mass. 392, 400, 645 N.E.2d 689, cert. denied, 516 U.S. 861, 116 S.Ct. 170, 133 L.Ed.2d 111 (1995). The right to cross-examination, however, "is not without limits, and it 'must be accommodated to other legitimate interests.' " Commonwealth v. Johnson, 431 Mass. 535, 540, 728 N.E.2d 281 (2000), quoting Commonwealth v. Clifford, 374 Mass. 293, 305, 372 N.E.2d 1267 (1978). Those limits are "based on concerns about ... harassment, prejudice, confusion of the issues, the witness's safety, or interrogation that is repetitive or only marginally relevant" (citation omitted). Johnson, supra. Moreover, a judge has discretion to limit questions that involve collateral issues and questions where the connection to the evidence of bias is too speculative. Avalos, supra at 7, 906 N.E.2d 987. "A defendant must make a 'plausible showing' of alleged bias, with a factual basis for support"; otherwise, the judge may restrict or entirely exclude the inquiry. Commonwealth v. Sealy, 467 Mass. 617, 624, 6 N.E.3d 1052 (2014), quoting Tam Bui, supra at 401, 645 N.E.2d 689. The judge has broad discretion to determine the scope and extent of cross-examination. See Commonwealth v. Jones, 478 Mass. 65, 73, 82 N.E.3d 1013 (2017) ; Commonwealth v. Meas, 467 Mass. 434, 450, 5 N.E.3d 864, cert. denied, --- U.S. ----, 135 S.Ct. 150, 190 L.Ed.2d 110 (2014).

The defendant asks this court to hold that a witness's status as an undocumented immigrant impugns that witness's credibility -- even without the specifically articulated expectation of favorable treatment with respect to his or her citizenship status. The defendant contends that he should be able to draw out a witness's citizenship status on cross-examination to explore bias. We conclude that this argument depends on a showing that the witness was testifying in order to curry favor with the Commonwealth. See Meas, 467 Mass. at 450, 5 N.E.3d 864. Here, the judge permitted the defendant to ask whether each witness discussed his or her citizenship status with the police or the prosecution. If the witness had not, the defendant was not permitted to inquire further. Once the witness testified that he or she had not conversed with the Commonwealth or curried any favor, there was no longer a "plausible connection" between the witness's citizenship status and potential bias (citation omitted). See Sealy, 467 Mass. at 624, 6 N.E.3d 1052. Put another way, after the witnesses testified that they had not talked about their citizenship status with the Commonwealth, their status became irrelevant as a motive to lie. Id. at 624-625, 6 N.E.3d 1052. See Johnson, 431 Mass. at 538, 728 N.E.2d 281 (affirming exclusion of cross-examination where "the import of the question was too attenuated to create a remote possibility of ... bias").

In one instance, a detective told a witness for the Commonwealth that he would be willing to write that witness a letter if the witness decided to apply for citizenship. At that point, that witness's citizenship status was relevant to a potential bias in his testimony. The judge expressed her willingness to allow the defendant to explore this bias in cross-examination. We agree with the defendant that the fact the Commonwealth had the appearance of a quid pro quo with one of its witnesses suggests that inducements may have been made to other witnesses. Contrary to the defendant's position, however, the judge did not foreclose the potential bias line of questioning with other witnesses. Instead, she permitted the defendant to lay the foundation for potential bias by inquiring if the witnesses had spoken with police or prosecutors about their citizenship status. It was a necessary preliminary question that needed to be answered in the affirmative to demonstrate a possibility of bias before the judge would allow the defendant to further explore bias. See Magadini, 474 Mass. at 603-605, 52 N.E.3d 1041. The defendant's claims that other witnesses were biased are "grounded only in speculation." Meas, 467 Mass. at 451, 5 N.E.3d 864.

In addition, the judge was permitted to limit the defendant's cross-examination of the witnesses to prevent embarrassment and harassment. See Mass. G. Evid. § 611(a)(3) (2018). There is no reason to believe that the fact that the witnesses may not have been legal residents of the United States was evidence of their ability to be truthful. In reality, a witness's status as an undocumented immigrant, for a variety of reasons, would make the witness less likely to cooperate with the government. See Commonwealth v. Morgan, 449 Mass. 343, 364 n.17, 868 N.E.2d 99 (2007) (fact that witness was aware that he might be subject to prosecution for illegal entry into country "adds nothing" to discussion of bias).

The judge's well-reasoned balancing of the defendant's rights with the interests of the Commonwealth and its witnesses was commendable. The judge did not abuse her discretion in limiting the defendant's cross-examination of the Commonwealth's witnesses.

b. Use of interpreters. In his appeal from the denial of his motion for a new trial, the defendant argues that the procedure suggested by the trial judge, and approved by defense counsel, of using two interpreters, one for the non-English speaking witnesses and one for the defendant at counsel's table, violated his constitutional right to due process of law. He suggests that he was not allowed to hear actual witness testimony, but rather testimony that went through two translators -- Spanish translated into English for the jury, which was then translated back into Spanish for the defendant. "Where the appeal from the denial of a motion for a new trial is considered with the direct appeal from a conviction of a capital crime, we review the denial of that motion to determine if the judge committed an abuse of discretion or other error of law and, if so, whether such error created a substantial likelihood of a miscarriage of justice." Commonwealth v. Chatman, 466 Mass. 327, 333, 995 N.E.2d 32 (2013), citing Commonwealth v. Leng, 463 Mass. 779, 781, 979 N.E.2d 199 (2012).

Neither the defendant nor defense counsel filed an affidavit in support of the motion for a new trial. The only affidavit submitted was from one of the interpreters at trial, who, as the motion judge noted, had been dismissed by the trial judge. The motion judge did not credit the interpreter's affidavit and held that it was "based exclusively on [her] own unsubstantiated and unsettled personal opinions and pure speculation of what may have been going on in the mind of the defendant who was represented by experienced trial counsel who agreed to the procedure used." This uncredited affidavit is the sole support for the defendant's argument on appeal.

Adopting the uncredited affiant's assertions, the defendant argues that he was forced to wear a "double auricular headset" that prevented him from hearing actual witness testimony. Moreover, he contends that the microphones at the witness stand were muted, which forced him to rely specifically on his interpreter's translation of the translation of the witnesses' interpreter.

Our review of the record, however, tells a different story. On the first day of jury empanelment, the trial judge discussed with the Commonwealth and defense counsel how they would like to use interpreters for the trial. The judge stated:

"I think we need two interpreters for the time that we have a Spanish-speaking witness. And the reason for this is that the defendant, in my view, needs to hear what the translation is, not to hear it in Spanish. I have had experience with discrepancies not involving any of the interpreters here but with issues of discrepancies over the years sufficient for me to believe that to ensure, particularly in a first-degree murder case, to ensure that the defendant knows exactly what the interaction is because [defense counsel] is not Spanish speaking, that we should have two interpreters at all times.... I think that we need that.... I mean, correct me, counsel, if you feel to the contrary."

In response, defense counsel stated: "No. I absolutely think I need an interpreter with me at counsel table with the defendant." During jury selection, the judge instructed potential jurors that there would be multiple "interpreters ... throughout the trial" and that they were required to "follow what the interpreter says in English as the response or the question even if [they] believe, based on [their] understanding of Spanish or Portuguese, that the interpreter is not accurate." Later, while questioning a potential juror who was concerned because he was hard of hearing, the judge assured the juror that "the interpreter [would] be speaking into a microphone."

After reviewing the transcript, we discern no abuse of discretion. First, the judge conferred with defense counsel before implementing this procedure. Defense counsel agreed with the procedure and did not object to its practice at any point during trial. See Commonwealth v. Festa, 369 Mass. 419, 428, 341 N.E.2d 276 (1976) ; Commonwealth v. Boiselle, 16 Mass. App. Ct. 393, 399, 451 N.E.2d 1178 (1983), citing Festa, supra. ("A barren record does not create a presumption of prejudice in the defendant's favor").

Second, the use of multiple interpreters complied with the governing interpreter procedures in the Trial Court. See Standards and Procedures of the Office of Court Interpreter Services, 973 Mass. Reg. 3 (Apr. 18, 2003), promulgated pursuant to G. L. c. 221C, § 7. Section 14.03, which covers the simultaneous use of multiple interpreters, states in part:

"(A) When there are multiple [limited English proficiency] parties, an interpreter or team of interpreters, using appropriate equipment, may interpret simultaneously for all of the parties.
"(B) When a witness requires an interpreter, however, a separate interpreter must be assigned to the witness to allow parties to communicate with counsel as necessary in a timely manner."

The judge's procedure mirrored the guidance given by the Standards and Procedures of the Office of Court Interpreter Services.

Finally, the judge correctly instructed the jury that it was the translation of the witnesses' testimony that was to be considered as evidence. Commonwealth v. Portillo, 462 Mass. 324, 328, 968 N.E.2d 395 (2012) (when witness testifies in foreign language, English translation is only evidence, not testimony in original language). Even if the defendant could not hear the Spanish testimony, it was the translation of the testimony that was considered by the jury, and the defendant received a Spanish translation of the English translation provided to the jury.

3. Conclusion. For these reasons, we affirm the defendant's conviction and the denial of his motion for a new trial. Furthermore, we have reviewed the record in its entirety and see no basis to grant extraordinary relief under G. L. c. 278, § 33E.

So ordered.

      There was evidence that the victim and the defendant were arguing because the victim owed the defendant money or stole forty dollars from him.


author: GREEN, C.J.

text:
    Eric HOLMES v. Fawn ANDERSEN & another.
    No. 18-P-13
    Appeals Court of Massachusetts, Suffolk..
    Argued October 11, 2018. Decided November 9, 2018.
    Michael J. Traft, for the plaintiff.
    Daniel J. Pasquarello, Boston, for the defendants.
    Present: Green, C.J., Hanlon, & Maldonado, JJ.

      Bjorn Andersen.

   GREEN, C.J.

This appeal raises several procedural questions concerning appeals of orders allowing attorney's fees pursuant to G. L. c. 231, § 6F. A judge of the Superior Court dismissed the plaintiff's appeal of such an order, on the ground that his notice of appeal was untimely. We affirm.

Background. This litigation began with the plaintiff's complaint challenging the issuance of a building permit to the defendants for the construction of an addition to a residence. A judge of the Superior Court allowed the defendants' motion for summary judgment, and a panel of this court affirmed the ensuing judgment. See Holmes v. Andersen, 89 Mass. App. Ct. 1110, 2016 WL 825543 (2016). The defendants then moved for an award of attorney's fees incurred in defense of that action, pursuant to G. L. c. 231, § 6F. The judge allowed the motion and, in a memorandum of decision and order dated November 15, 2016 (decision), awarded attorney's fees and costs in the amount of $84,000 to the defendants. That decision was entered on the Superior Court docket on November 23, 2016, and was mailed to the parties the same day. Both parties received the decision on November 28, 2016. The record also includes a separate "judgment," dated November 23, 2016, reflecting the award of fees; it was entered on the docket and mailed to the parties on November 28, 2016.

On December 12, 2016, fourteen days after receiving the decision on the fee award, the plaintiff filed with the Superior Court a notice of appeal from the "judgment on attorneys fees and costs ... and all related orders on this issue." On June 20, 2017, the Superior Court clerk sent notice of assembly of the record and, on June 28, 2017, the appeal was entered in the single justice session of this court. In the meantime, however, on June 27, 2017, the defendants had filed in the Superior Court a motion to dismiss the appeal. A single justice of this court allowed the defendants' motion to stay the appeal, pending action by the Superior Court on their motion to dismiss the appeal. On September 6, 2017, the Superior Court judge allowed the defendants' motion to dismiss the appeal. This appeal from the order of dismissal followed.

Discussion. Appeals from an order awarding attorney's fees under § 6F are governed by G. L. c. 231, § 6G, the provisions of which are set out in the margin. In pertinent part, § 6G requires a party appealing from an order awarding attorney's fees to file a notice of appeal from such an order "within ten days after receiving notice of the decision thereon." In the present case, the plaintiff received notice of the decision on November 28, 2016; accordingly, to be timely his notice of appeal was required to be filed by December 8, 2016. The plaintiff filed his notice of appeal on December 12, 2016, four days beyond the required deadline.

On appeal from the order of dismissal, the plaintiff raises several claims; we address each in turn.

The plaintiff first contends that the ten-day appeal period created by § 6G is actually thirteen days, by reason of the operation of Mass. R. Civ. P. 6 (d), 365 Mass. 747 (1974), which provides that "[w]henever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other papers upon him and the notice or paper is served upon him by mail, [three] days shall be added to the prescribed period." As a threshold matter, we observe that the ten-day appeal period, created by statute, cannot be varied by court rule. See Ben v. Schultz, 47 Mass. App. Ct. 808, 809, 815, 716 N.E.2d 681 (1999). In any event, the rule does not apply by its terms to the appeal period established by § 6G, since that statute provides that the prescribed time runs from the date of receipt of notice, not from the date of service.

The plaintiff next suggests that the appeal period should be calculated from the date on which he received the judgment, rather than the date on which he received the decision. The argument finds no support in the language of § 6G, which provides clearly that the appeal period runs from the date on which the appealing party receives notice of the decision. Moreover, the plaintiff has offered nothing to establish that he received notice of the judgment on or after November 30, 2016, the earliest date that would bring his notice of appeal within the required appeal period (even were we to adopt his suggestion).

Finally, there is no merit to the plaintiff's suggestion that it would have been "more appropriate" for the single justice, rather than the Superior Court judge, to determine the timeliness of his notice of appeal. It is unclear whether the plaintiff contends that the entry of the appeal on the single justice docket operated to deprive the Superior Court of jurisdiction over the case, or whether he contends that only this court may dismiss an appeal upon determination that the notice of appeal was untimely. The former proposition is incorrect, in light of the well-developed body of law supporting the propriety of staying an appeal in this court to allow the trial court to address matters pending there. See, e.g., Commonwealth v. Montgomery, 53 Mass. App. Ct. 350, 353-354 & n.7, 759 N.E.2d 714 (2001) ; Springfield Redev. Auth. v. Garcia, 44 Mass. App. Ct. 432, 434-435, 691 N.E.2d 965 (1998). In the present case, by staying the appeal in this court pending action on the motion to dismiss the appeal filed in Superior Court, the single justice expressly recognized the authority of the Superior Court judge to act on that motion. Strictly speaking, the order of the Superior Court judge allowing the motion to dismiss the appeal is best understood as one striking the late-filed notice of appeal; the appeal itself is dismissed by docket entry on this court's docket, following the determination by the Superior Court judge that the notice of appeal was untimely. In any event, even if the plaintiff were correct in his premise it would avail him nothing. The record before us establishes that the notice of appeal was untimely and required dismissal of the appeal, whether by the Superior Court judge or by a panel of this court. ,

Order dismissing appeal affirmed.

      General Laws c. 231, § 6F, directs an award of fees upon a determination, after hearing, "that all or substantially all of the claims, defenses, setoffs or counterclaims, whether of a factual, legal or mixed nature, made by any party who was represented by counsel during most or all of the proceeding, were wholly insubstantial, frivolous and not advanced in good faith."

      General Laws c. 231, § 6G, states:
      "Any party aggrieved by a decision on a motion pursuant to [G. L. c. 231, § 6F,] may appeal as hereinafter provided. If the matter arises in the superior, land, housing or probate court, the appeal shall be to the single justice of the appeals court at the next sitting thereof. If the matter arises in the appeals court or before a single justice of the supreme judicial court, the appeal shall be to the full bench of the supreme judicial court. The court deciding the appeal shall review the finding and award, if any, appealed from as if it were initially deciding the matter, and may withdraw or amend any finding or reduce or rescind any award when in its judgment the facts so warrant.
      "Any party may file a notice of appeal with the clerk or register of the court hearing the motion within ten days after receiving notice of the decision thereon. The clerk or register shall then forward the motion, the court's findings and award, and any other documents relevant to the appeal to the clerk of the court deciding the appeal who, upon receipt thereof, shall refer the matter to the court for speedy decision and shall notify the parties of such decision, which shall be final. Any appeal to the supreme judicial court or the appeals court shall proceed according to the Massachusetts Rules of Appellate Procedure; any appeal to a single justice of the Appeals Court shall proceed under the rules for the regulation of practice before a single justice of that court. The payment of any award made pursuant to [§ 6F ] shall be stayed until the completion of all appeals relating to the civil action in which the award was made."

      Even in those settings in which rule 6 (d) applies, we note that the rule calculates additional time from the date of service, which is complete upon mailing. See Mass. R. Civ. P. 5 (b), 365 Mass. 745 (1974). Adding three days to the date on which the decision was mailed before starting the ten-day appeal period would produce no benefit for the plaintiff, since the decision was mailed on November 23, 2016, and he did not file his notice of appeal until December 12, 2016.

      We note that neither § 6F nor the rules of civil procedure make any provision for the entry of a separate judgment on an order awarding attorney's fees under § 6F. We have held that a § 6F motion is a collateral proceeding, and "not a distinct cause of action resulting in a judgment." Ben, 47 Mass. App. Ct. at 814, 716 N.E.2d 681.

      December 12, 2016, the date on which the plaintiff filed his notice of appeal, was a Monday, the first business day following the tenth day after November 30, 2016. See G. L. c. 4, § 9.

      To the extent that the plaintiff protests that he should have been allowed to make a showing of excusable neglect to justify an enlargement of time, the argument is misplaced; he has presented no evidence of excusable neglect and, as we have observed, because the appeal period is established by statute rather than rule of court, it cannot be enlarged, regardless of any such evidence he might present. See Ben, 47 Mass. App. Ct. at 814-815, 716 N.E.2d 681.

      We decline the defendants' motion for an award of their appellate attorney's fees. Although we have concluded that the plaintiff's claims are without merit, we do not consider them frivolous. In particular, we observe that there previously was no published appellate authority squarely addressing the question whether the issuance of a separate (albeit superfluous) judgment on an order for attorney's fees under § 6F would cause the appeal period to run from receipt of it, rather than from the fee award order itself.


author: AGNES, J.

text:
    COMMONWEALTH v. William BRADSHAW.
    No. 15-P-568
    Appeals Court of Massachusetts, Suffolk..
    Argued November 6, 2017 Decided November 14, 2018
    Joseph M. Kenneally for the defendant.
    Darcy A. Jordan, Assistant District Attorney (Nicole A. Poirier, Assistant District Attorney, also present) for the Commonwealth.
    Present: Agnes, Maldonado, & McDonough, JJ.
   AGNES, J.

Following a jury trial, the defendant, William Bradshaw, was found to be a "sexually dangerous person." See G. L. c. 123A, §§ 1, 12, 14. In accordance with the statute, the judge committed the defendant to the Massachusetts Treatment Center (treatment center) for an indeterminate period of from one day to life.

This appeal followed and requires us to determine whether the judge erred in allowing the Commonwealth to call a witness who testified to instances of uncharged sexual misconduct committed against her by the defendant. For the reasons that follow, we conclude that such evidence was admissible because it was relevant, it did not violate restrictions on the use of character evidence, and its probative value far outweighed any danger of unfair prejudice.

Background. In September, 2013, the district attorney filed a petition to civilly commit the defendant as a sexually dangerous person pursuant to G. L. c. 123A, § 12, based on the defendant's prior adjudications of delinquency and his numerous convictions of sexual offenses. See Commonwealth v. McLeod, 437 Mass. 286, 290-291, 771 N.E.2d 142 (2002) (describing process pursuant to G. L. c. 123A, § 12 (b ), by which appropriate district attorney is notified six months in advance of release from custody of person serving sentence for any one of enumerated sexual offenses, and opportunity that said prosecutor has to determine whether prisoner is likely to be sexually dangerous, and, if so, to file petition in Superior Court alleging that prisoner is sexually dangerous, along with sufficient facts to support same). The filing of a petition by the district attorney under G. L. c. 123A, § 12 (b ), triggers a probable cause hearing, see G. L. c. 123A, § 12 (c ), which, in turn may lead to a trial. See G. L. c. 123A, § 14. See Commonwealth v. Gross, 447 Mass. 691, 693-694, 856 N.E.2d 850 (2006).

In order to prove that a person is a "sexually dangerous person," the Commonwealth must establish, by the standard of proof beyond a reasonable doubt, that the person was "convicted of or adjudicated as a delinquent juvenile or youthful offender by reason of a sexual offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in sexual offenses if not confined to a secure facility." G. L. c. 123A, § 1. In the present case, the Commonwealth presented evidence at trial of the defendant's adjudications and convictions, which consisted of a 1999 juvenile commitment for indecent assault and battery on a child under the age of fourteen and two 2012 convictions for rape of a child and indecent assault and battery on a child under the age of fourteen. Each of the three victims in these cases were prepubescent girls (ages three, six, and eight) who were relatives of the defendant.

Both qualified examiners diagnosed Mr. Bradshaw with pedophilia and antisocial personality disorder. They also stated that the existence of these disorders contributed to their conclusions that he suffers from a mental abnormality and a personality disorder, as defined in G. L. c. 123A, § 1. Doctors Johnson and Belle testified that Mr. Bradshaw had not sufficiently progressed in treatment, had not come to understand his offending behavior, and was likely to reoffend sexually if released from confinement. Dr. Katrin Rouse-Weir, who testified on behalf of Mr. Bradshaw, concluded that he was not sexually dangerous. She testified that though Mr. Bradshaw suffered from pedophilia and antisocial personality disorder, which satisfied the statutory definitions of mental abnormality and personality disorder, he was unlikely to reoffend. The two other qualified examiners testified that Mr. Bradshaw was not of advanced age and did not suffer from poor health, factors that are both associated with lower risks of reoffending. They also noted that Mr. Bradshaw has struggled with substance abuse which, left unaddressed, may diminish inhibitions related to offending.

Prior to trial, B.B., who also was related to the defendant, spoke with a prosecutor and an investigator and recounted the sexual abuse perpetrated against her by the defendant while she was between the ages of five and eleven, which spanned the years 1995-2001. B.B.'s pretrial statements, which mirror her trial testimony in all material respects, were subsequently memorialized in a report that was provided to the defendant prior to the trial and submitted to the qualified examiners assigned to the case. The defendant filed a pretrial motion to exclude B.B.'s testimony for a number of reasons, including a claim that it would force the defendant to waive his privilege against self-incrimination, and that such evidence was prejudicial, irrelevant, and cumulative. The judge denied the motion.

At trial, both qualified examiners testified that B.B.'s statements constituted further evidence of the defendant's sexual attraction to prepubescent girls. In particular, these experts testified that the defendant's criminal acts committed against B.B. were evidence of the "persistence of his deviant sexual arousal toward prepubescent girls" (Dr. Johnson) and "another indicator of his inability to control his sexual impulses" (Dr. Belle). The jury ultimately found beyond a reasonable doubt that the defendant was a sexually dangerous person. He was committed to the Bridgewater State treatment center for an indefinite period ranging from one day to life.

Discussion. 1. Evidentiary issues. Much of the defendant's argument why B.B.'s testimony should not have been admitted at trial is mistakenly focused on G. L. c. 123A, § 14 (c ). Specifically, the defendant argues that § 14 (c ) does not authorize the admission of evidence of uncharged criminal conduct. The statute reads as follows:

"Juvenile and adult court probation records, psychiatric and psychological records and reports of the person named in the petition, including the report of any qualified examiner, as defined in section 1, and filed under this chapter, police reports relating to such person's prior sexual offenses, incident reports arising out of such person's incarceration or custody, oral or written statements prepared for and to be offered at the trial by the victims of the person who is the subject of the petition and any other evidence tending to show that such person is or is not a sexually dangerous person shall be admissible at the trial if such written information has been provided to opposing counsel reasonably in advance of trial."

In Commonwealth v. Markvart, 437 Mass. 331, 333-334, 336, 771 N.E.2d 778 (2002), the Supreme Judicial Court held that a defendant must be convicted or adjudicated delinquent of the crime underlying a police report or witness statement as a precondition of its admissibility in evidence during a trial on a sexually dangerous person petition. The defendant attempts to use the statutory language of § 14 (c ), and the Court's holding in Markvart to argue that B.B.'s testimony was improperly admitted in evidence at trial because her testimony recounted sexual misconduct that did not result in a conviction. The defendant's argument is unpersuasive.

As its plain language suggests, § 14 (c ) is a statutory exception to the hearsay rule that "enumerates several categories of specifically admissible evidence," Commonwealth v. Given, 441 Mass. 741, 744, 808 N.E.2d 788 (2004), that would otherwise be inadmissible hearsay. See McHoul, petitioner, 445 Mass. 143, 147, 833 N.E.2d 1146 (2005) ; Given, supra ; Markvart, supra at 335-336, 771 N.E.2d 778. See also Mass. G. Evid. § 1103 (b) (1) (2018). B.B. provided live-witness testimony based on her direct experience and, as such, her testimony was not hearsay and was not affected by § 14 (c ). See Mass. G. Evid. § 801 (2018).

Although the defendant was never charged with a crime based on B.B.'s allegations, the limitation placed on the admissibility of witness statements and police reports by the court in Markvart does not limit a witness's ability to testify about uncharged sexual misconduct during a trial on a sexually dangerous person petition. Indeed, in Markvart, 437 Mass. at 337, 771 N.E.2d 778, the Court, in its discussion as to whether the material from a nol prossed case could form the basis of a qualified examiner's opinion, explained: "The fact that a prior charge was nol prossed does not mean that the underlying information on which the charge was predicated has become inherently inadmissible. For example, the complaining witness in the nol prossed case would still be allowed to testify, as would any of the other witnesses who could have testified if that case had gone to trial." Here, B.B. did just that.

We now turn to the question of whether B.B.'s testimony, which was not admitted pursuant to a particular statutory exception to our common law of evidence, was properly admitted. The defendant's objection is framed in terms of due process and is based on two principal arguments. First, the defendant contends in general terms it is fundamentally unfair to impose on him a burden to defend against allegations of criminal activity for which he was neither charged nor convicted and that are alleged to have occurred over twenty years before his trial. This argument, in turn, calls for a consideration of the probative value of the evidence weighed against its potential for unfair prejudice. B.B.'s testimony was highly probative and its evidential value was not substantially outweighed by the danger of unfair prejudice. See Mass. G. Evid. § 403 (2018). In a proceeding requiring the Commonwealth to prove that the defendant was sexually dangerous if released into society, the probative value of B.B.'s testimony was significant because, as the qualified examiners testified, it further evinced the defendant's inability to control his sexual impulses and his deviant arousal. B.B. testified that she was sexually assaulted from the mid-1990s until approximately 2001, and the defendant was convicted or adjudicated delinquent of other sexual offenses occurring between 1998 and 2009. The defendant's conduct set forth in B.B.'s testimony was thus not too remote in time to the other crimes of which the defendant was convicted or adjudicated delinquent so as to render B.B.'s testimony unfairly prejudicial.

The defendant was given timely notice that B.B. would testify, and was aware of the substance of her testimony. The defendant also had the opportunity to cross-examine B.B. and expose any weaknesses in her testimony. He chose not to do so. The jury were also adequately instructed that it was to determine the credibility of the witnesses who testified at trial and the weight that any particular witness's testimony should be given.

The second aspect of the defendant's due process argument is that the introduction of B.B.'s testimony unlawfully burdened his decision to testify in his own defense. The defendant asserts that, if he had testified at trial, he would have been placed in the position of choosing between two undesirable options: he could have asserted before the jury his right against self-incrimination under the Fifth Amendment to the United States Constitution with respect to the misconduct underlying B.B.'s testimony, or, alternatively, he could have challenged B.B.'s claims knowing that his testimony could subject him to criminal liability; the defendant ultimately did not testify at trial. The defendant's argument is unavailing as he cites no authority to support his contention. The prohibition against self-incrimination applies in civil proceedings, such as those brought pursuant to G. L. c. 123A, § 12, where the defendant's testimony may give rise to "future criminal proceedings." Commonwealth v. Hunt, 462 Mass. 807, 811-812, 971 N.E.2d 768 (2012). The parties do not dispute that the defendant could have been subjected to criminal liability based on B.B.'s testimony. However, the defendant depicts his choice as one between testifying and exposing himself to cross-examination with reference to a matter that could result in a future criminal prosecution or not testifying at all. There was another option. The defendant could have sought a ruling that he would not have to assert his privilege against self-incrimination in front of the jury unless he testified about B.B.'s allegations on direct examination. The judge could then have then ruled on the defendant's assertion of the privilege outside the presence of the jury. See Commonwealth v. Fisher, 433 Mass. 340, 349-350, 742 N.E.2d 61 (2001). If the judge determined that there was a valid basis for asserting the privilege to questions relating to B.B.'s testimony, the Commonwealth could have been prevented from questioning the defendant about the allegations set forth by B.B.

Conclusion. For the above reasons, evidence of uncharged criminal conduct similar in nature to the conduct described in the predicate offenses and alleged to have occurred close in time to the acts that make up the predicate offenses is admissible in a proceeding to determine whether the defendant is a sexually dangerous person because it is relevant and probative on the question of the defendant's likelihood of reoffending and any danger of unfair prejudice can be avoided by appropriate instructions to the jury.

Judgment affirmed.

      "At a probable cause hearing conducted pursuant to G. L. c. 123A, § 12 (c ), the judge is to conduct 'a two-part inquiry, one quantitative and the other qualitative. The judge must be satisfied, first, that the Commonwealth's admissible evidence, if believed, satisfie[s] all of the elements of proof necessary to prove the Commonwealth's case. Second, she must be satisfied that the evidence on each of the elements is not so incredible, insubstantial, or otherwise of such a quality that no reasonable person could rely on it to conclude that the Commonwealth had met its burden of proof.' " Commonwealth v. Fusi, 91 Mass. App. Ct. 901, 69 N.E.3d 600 (2017), quoting Commonwealth v. Reese, 438 Mass. 519, 524, 781 N.E.2d 1225 (2003).

      This charge was the result of a 1998 incident when Mr. Bradshaw was sixteen years of age. Mr. Bradshaw and his niece, referred to as "D," were in the bathroom when the child's mother saw him wiping what she believed to be semen off of the child, who was seated with her underwear down and her dress up. The child said that the defendant licked her vagina and rubbed his penis against her until he ejaculated.

      The 2012 convictions involved two separate incidents with different victims. In 2005, the defendant touched his eight year old cousin, referred to as "N," on her vagina on two occasions while they played video games. In 2009, while the defendant's mother was also home, the defendant took off his daughter's clothes and covered her mouth, telling her to be quiet as he raped her.

      A mental abnormality is defined as "a congenital or acquired condition of a person that affects the emotional or volitional capacity of the person in a manner that predisposes that person to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of other persons." G. L. c. 123A, § 1.

      A "personality disorder" is defined as "a congenital or acquired physical or mental condition that results in a general lack of power to control sexual impulses." G. L. c. 123A, § 1.

      The Commonwealth chose not to prosecute the defendant based on the allegations made by B.B.

      This general rule has since been tempered by other opinions of this court and the Supreme Judicial Court. See Commonwealth v. Given, 441 Mass. 741, 745-746, 808 N.E.2d 788 (2004) (statement of uncharged conduct in police report admissible in sexually dangerous person proceeding as it was "unambiguously 'relat[ed] to' " circumstances of victim's abuse that resulted in guilty plea); Commonwealth v. Starkus, 69 Mass. App. Ct. 326, 333, 867 N.E.2d 811 (2007) (uncharged conduct in follow-up report by police admissible where it related to sexual offense of which defendant was ultimately convicted).

      Because the definition of a sexually dangerous person under G. L. c. 123A, § 1, requires the Commonwealth to prove that there is a likelihood that the defendant will reoffend in the future if he is not confined to a secure facility, and all the experts who testified at trial were in agreement that the defendant suffered from pedophilia, evidence that the defendant committed sexual assaults against children other than those that resulted in his conviction was inherently relevant and probative on the question of the likelihood of reoffending in the future. As the Virginia Supreme Court recently observed in a civil commitment proceeding, evidence that a defendant committed sexual offenses against persons that did not result in criminal charges is not an improper use of character evidence, see Mass. G. Evid. § 404 (a) (1) (2018), because the central question before the court is not whether the defendant committed those other offenses. "Rather, it is whether, because of a mental abnormality or personality disorder, he finds it difficult to control his predatory behavior, which makes him likely to engage in sexually violent acts in the future." Commonwealth v. Proffitt, 292 Va. 626, 640, 792 S.E.2d 3 (2016). Because the expert witnesses in the present case testified that not only did the defendant suffer from a mental abnormality and a personality disorder, but that he was unable to control his deviant sexual impulses, it cannot be said that the defendant's commitment rests solely on proof of his bad character. See Kansas v. Hendricks, 521 U.S. 346, 357, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (civil commitment cannot be based on "a mere predisposition to violence; rather, it requires evidence of past sexually violent behavior and a present mental condition that creates the likelihood of such conduct in the future if the person is not incapacitated"). See also Commonwealth v. George, 477 Mass. 331, 336, 76 N.E.3d 217 (2017) (Massachusetts law does not permit indefinite commitment of people because they are diagnosed as having psychiatric or psychological condition). Finally, the balancing test that is applicable under Mass. G. Evid. § 403 is the traditional one that calls for exclusion of relevant evidence only when its probative value is "substantially outweighed" by the danger of unfair prejudice. Contrast Commonwealth v. Crayton, 470 Mass. 228, 249 & n.27, 21 N.E.3d 157 (2014).

      The defendant further argues that the qualified examiners improperly considered a report that mirrored B.B.'s testimony, discussed supra, in concluding that the defendant was a sexually dangerous person. This argument is unavailing. The qualified examiners properly relied on the report, as the facts contained therein were admitted at trial through B.B.'s testimony. See Markvart, 437 Mass. at 336-337, 771 N.E.2d 778, citing Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 531, 499 N.E.2d 812 (1986).