Friday, May 27, 2016

The Conspiracy to Commit Larceny, Identity Fraud and The One Fund

This post examines an opinion from the Supreme Judicial Court of Massachusetts,
Suffolk:  Commonwealth v. Mattier, 2016 WL 2758931 (2016).  The opinion begins by explaining that the defendants,
Branden E. Mattier and his half-brother Domunique D. Grice, were convicted by a jury on indictments charging one count each of conspiracy to commit larceny, [Massachusetts General Laws]  chapter 274, § 7, and attempted larceny, [Massachusetts General Laws] chapter 274, § 6. Mattier also was convicted on an indictment charging one count of identity fraud, [MassachusettsGeneral Laws] chapter 266, § 37E. The charges stemmed from an attempt by the defendants to defraud The One Fund Boston (One Fund) of approximately $2 million by claiming that a long-deceased aunt had been injured in the 2013 bombing at the finish line of the Boston Marathon.

The judge imposed on each defendant a State prison sentence of from three years to three years and one day on the conspiracy count and three years' probation on the attempted larceny count, to run from and after the committed sentence. Mattier was sentenced to an additional concurrent probationary term for his conviction of identity fraud. The defendants appealed, and we granted their applications for direct appellate review.
Commonwealth v. Mattier, supra. You can, if you are interested, read more about the facts and the defendants in the news stories you can find here, here and here.
The court also explained that
[a]lthough the appeals were not formally consolidated, we have treated them as such, given the substantial congruence of the issues raised by the defendants.  Mattier contends that his conviction of identity fraud fails as a matter of law because the charged conduct is insufficient to meet the elements of the statute. Both defendants claim that the judge erred in (1) denying the motion to suppress evidence obtained as a result of Mattier's warrantless arrest for the identity fraud and attempted larceny charges; (2) denying the motions for required findings of not guilty on all charges; and (3) denying the motion to strike for cause jurors who donated to One Fund. Grice also challenges statements made by the prosecutor in closing argument.
Commonwealth v. Mattier, supra.
The Supreme Judicial Court began the substantive part of its opinion by explaining how, and why, the prosecution arose:
After two bombs exploded near the finish line of the Boston Marathon on April 15, 2013, One Fund was established. . . . In early May, 2013, the administrator of One Fund held two community meetings to discuss distribution. Mattier and Grice attended one of the meetings, and Mattier registered on One Fund's Web site the following day. On May 15, 2013, One Fund disseminated the claims protocol to those persons registered on One Fund's Web site. The levels of payment were based on severity of injury, with the largest amount going to those victims who suffered double amputation. The protocol required that a claimant submit a `hospital statement’ confirming the dates of hospital treatment and the nature of the injury. All claims were due by June 15, 2013.

One Fund received a claim form from Mattier on June 12, 2013, stating that Mattier's aunt had been injured in the bombing and had required double amputation as a result of her injuries. Mattier requested that the claim disbursement check be made payable to him at his Boston address. On June 7, he signed the claim form as representative for his aunt, and his signature was notarized. Attached to the claim form was a signed letter purporting to be from Dr. Peter A. Burke, chief of trauma services at Boston Medical Center. The letter, dated May 2, 2013, stated that both of the aunt's legs had been amputated as a result of injuries from the marathon bombings.

One Fund administrators suspected that Mattier's claim form might be fraudulent and conducted an internal investigation. After learning that the aunt died in 2000, they rejected the claim. One Fund administrators alerted the Attorney General's office of the false claim.

As part of the Attorney General's investigation into the matter, the police created a `sting’ operation using an overnight courier to deliver a letter to Mattier's residence on July 1, 2013, which stated that the claim had been approved and a check would be arriving July 2, 2013. On July 1, police officers observed Mattier sign for and accept the letter outside his residence while holding his cellular telephone. Subsequently, the police officers obtained a search warrant for Mattier's residence and for Mattier himself at that location.
Commonwealth v. Mattier, supra.
The opinion explains that, on July 2, 2013,
police conducted a controlled delivery of a fake check to Mattier. State police Trooper John Banik drove to Mattier's residence dressed as a Federal Express delivery driver in a white van bearing a Federal Express logo. Mattier was standing just outside his apartment building when Trooper Banik arrived. The two walked toward each other and met on the sidewalk in front of Mattier's apartment building. Trooper Banik asked Mattier to produce his driver's license and, after explaining that he was delivering a claim check, asked whether Mattier was injured in the bombings. Mattier responded that his aunt had been injured. The trooper copied Mattier's driver's license number onto his paperwork and handed Mattier the envelope. Other police officers in the area then surrounded Mattier and arrested him for identity fraud and attempted larceny.

During booking, Mattier's cellular telephone was placed into his property inventory. After being given the Miranda warnings, Mattier waived his rights and spoke with Trooper Banik. He admitted to submitting the claim on behalf of his long-deceased aunt and explained how he created the doctor's letter using forms obtained from the Internet. Trooper Banik obtained Mattier's cellular telephone from inventory, placed it in his office, and obtained a search warrant authorizing the search of the telephone.
Commonwealth v. Mattier, supra.
The court then points out that the search of the cell phone
produced hundreds of cellular telephone text messages between Mattier and Grice. The brothers corresponded about One Fund on the day of the community meeting they had attended, expressed their joy at receiving news that their claim had been approved, and ruminated about the type of Mercedes Benz vehicle that each would buy using the funds awarded on their claim. In one of the text messages, sent before Mattier created the forged letter regarding their dead aunt's claimed injuries, Grice wrote to Mattier: `Subject: Auntie, Nevie Shelton ss# Hospitalized from 4–15–13 til 5–3–13 18 days. Yes to double amputation and permanent brain damage.’
Commonwealth v. Mattier, supra.  
The Court then took up Mattier’s conviction for identity fraud, explaining that Massachusetts General Laws chapter 266 § 37E, provides as follows:
Whoever, with intent to defraud, poses as another person without the express authorization of that person and uses such person's personal identifying information to obtain or to attempt to obtain money, credit, goods, services, anything of value, any identification card or other evidence of such person's identity, or to harass another shall be guilty of identity fraud and shall be punished by a fine of not more than $5,000 or imprisonment in a house of correction for not more than two and one-half years, or by both such fine and imprisonment.
Commonwealth v. Mattier, supra. 
The court went on to explain that
[t]he essential elements of the crime are that a defendant `(1) posed as another person; (2) did so without that person's express authorization; (3) used the other person's identifying information to obtain, or attempt to obtain, something of value; and (4) did so with the intent to defraud.’ Commonwealth v. Giavazzi, 60 Mass.App.Ct. 374, 802 N.E.2d 589 (2004). The essence of the Commonwealth's case was that Mattier downloaded a template of a letter from the Boston Medical Center onto his computer, composed a letter on the template, copied Dr. Burke's signature onto that letter, and then submitted the letter to One Fund together with his claim form.
Commonwealth v. Mattier, supra. 
The opinion notes that the defendants challenged
this conviction on the ground that the particular conduct at issue here was insufficient to establish the first and third elements of the crime. They argue that Mattier did not `pose’ as Dr. Burke within the meaning of the statute and that even if he did, he did not obtain or attempt to obtain money from One Fund while posing as Dr. Burke. In rebuttal, the Commonwealth argues that the evidence, taken in the light most favorable to it, Commonwealth v. Latimore, 378 Mass. 671, 676–677, 393 N.E.2d 370 (1979), was sufficient to prove that Mattier `pose[d]’ as Dr. Burke because the language of the letter implicitly asserted that he, as drafter, was Dr. Burke and that the statute does not require proof that the posing occurred at the same time as the attempt to obtain funds. The trial judge, in denying the defendants' motions for a required finding of not guilty on the identity fraud charges, focused on the `pos[ing]’ element and accepted that Mattier did not `directly’ pose as Dr. Burke. He noted that the `statute is stretched in this case’ because the defendants `did not represent themselves to be Dr. Burke at all. They used Dr. Burke's identity to validate their intended fraud.’ He then concluded that the jury should decide whether Mattier `indirectly posed as [Dr. Burke] by inserting that dummied up letter.’
Commonwealth v. Mattier, supra. 
The Supreme Judicial Court began its analysis of the defendants’ argument by noting that the
issue before us is whether, on the facts of this case, Mattier's conduct is encompassed within the reach of the statute. When the meaning of a statute is at issue, `[w]e begin with the canon of statutory construction that the primary source of insight into the intent of the Legislature is the language of the statute.’ International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 443 N.E.2d 1308 (1983). Where `the statutory language ‘[could] plausibly be found to be ambiguous,’ the rule of lenity requires the defendant[s] be given ‘the benefit of the ambiguity.’ Commonwealth v. Constantino, 443 Mass. 521, 525, 822 N.E.2d 1185 (2005). . . .
Commonwealth v. Mattier, supra. 
The court explained that it agreed with the
defendant's argument that he did not `pose’ as another person in the manner contemplated by the statute. General Laws c. 266, § 37E (a), defines `[p]ose’ to mean `falsely represent[ing] oneself, directly or indirectly, as another person or persons.’ Where G.L. c. 266, § 37E, does not define the phrase `falsely represent,’ we interpret the term in accordance with `approved usage of the language’ . . . Commonwealth v. Hinds, 437 Mass. 54, 768 N.E.2d 1067 (2002), cert. denied, 537 U.S. 1205 (2003). In that regard, other cases interpreting allegations of false representations require the existence of another party on the receiving end of the representation.  . . .
Accordingly, we interpret the phrase `falsely represent’ in G.L. c. 266, § 37E, to require the Commonwealth to prove that a defendant “pose[d]” as Dr. Burke in his dealings with a third party, One Fund.

Here, the operative act for the purposes of the identity fraud charge was the submission of a forged letter, purportedly written by Dr. Burke, to One Fund. Although Mattier misrepresented the authenticity of the letter to One Fund in claiming that the letter was from Dr. Burke, nothing in the evidence establishes that he ever falsely represented himself to be Dr. Burke.  Mattier submitted the claim form to One Fund under his own name; he did not falsely represent to One Fund that he was Dr. Burke at the time that he submitted the letter. Thus, Mattier's deception does not fall within the scope of the identity fraud statute; his criminal deception was properly charged as attempted larceny.
Commonwealth v. Mattier, supra. 
The defendants in this case raised a number of issues on appeal, but due to the complexity of those issues, this post only examines two of them, the second of which is the brothers’ argument that
their rights under the Federal and State Constitutions were violated by the trial judge's denial of the motion to excuse for cause jurors whom they claim were biased by their donations to One Fund (donating jurors). During voir dire, the judge asked each juror, `Have you or a member of your family raised any money for or contributed to or filed a claim with or received funds from the Boston One Fund?’ Over objections, the judge denied Grice and Mattier's motions to strike two donating jurors for cause. The judge explained that the mere act of donating was not sufficient for a juror to be excused for cause so long as the jurors credibly stated that they could be objective.’
Commonwealth v. Mattier, supra. 
The opinion explains that the trial judge
excused four donating jurors for cause where the jurors did not explicitly say that they could be indifferent. In one instance, the judge found a juror to be indifferent notwithstanding the fact that he and his firm had donated to One Fund. After being alerted by Mattier's counsel that the juror's firm had donated $1 million to the fund, the judge noted that he was going to `err on the side of caution,’ and he excused this juror for cause. Two donating jurors sat on the deliberating jury.
Commonwealth v. Mattier, supra. 
The court then referred to the applicable law, noting that
`Article 12 of the Declaration ofRights of the Massachusetts Constitution and the Sixth Amendment to the United States Constitution, applied to the States through the due process clause of the Fourteenth Amendment, guarantee the right of a criminal defendant to a trial by an impartial jury.’ Commonwealth v. Andrade, 468 Mass. 543, 11 N.E.3d 597 (2014), quoting Commonwealth v. McCowen, 458 Mass. 461, 494, 939 N.E.2d 735 (2010). `The presence of even one juror who is not impartial violates a defendant's right to trial by an impartial jury.’ McCowen, supra, quoting Commonwealth v. Vann Long, 419 Mass. 798, 802, 647 N.E.2d 1162 (1995). `The defendant has the burden of showing that the juror was not impartial and must do so by a preponderance of the evidence.’ Commonwealth v. Amirault, 399 Mass. 617, 626, 506 N.E.2d 129 (1987).
Commonwealth v. Mattier, supra. 
The Supreme Judicial Court then enunciated its ruling on the brothers’ argument that jury bias prejudiced them:
`[o]n a claim of structural error alleging that a jury were not impartial because a particular juror was biased, the defendant must show actual or implied juror bias.’ Commonwealth v. Hampton, 457 Mass. 152, 163, 928 N.E.2d 917 (2010). In deciding whether a juror is actually biased, `it is sufficient for the judge to ‘determine whether jurors [can] set aside their own opinions, [properly] weigh the evidence . . . and follow the instructions of the judge.’ Commonwealth v. Andrade, supra . . . . quoting Commonwealth v. Perez, 460 Mass. 683, 688–689, 954 N.E.2d 1 (2011).

We review for `clear abuse of discretion or a showing that the judge's findings were clearly erroneous.’ Commonwealth v. Torres, 437 Mass. 460, 469, 772 N.E.2d 1046 (2002), quoting Commonwealth v. Amirault, supr . . . . This is because such a determination `is essentially one of credibility, and therefore largely one of demeanor.’ Commonwealth v. McCowen, supra. . . . quoting Commonwealth v. Ferguson, 425 Mass. 349, 352–353, 680 N.E.2d 1166 (1997).

After a careful review of the record, we conclude that the judge did not abuse his discretion in finding that the jurors were not actually biased. The jurors either responded with a direct `No’ when asked whether the contribution would affect his or her ability to be objective or were further questioned until the judge was satisfied that each juror could be objective.
Commonwealth v. Mattier, supra. 
For these and other reasons, the Supreme Judicial Court affirmed
the convictions of attempted larceny and conspiracy against Grice and Mattier. Because we conclude that the evidence was insufficient to convict Mattier of identity fraud, we vacate that conviction and order entry of a judgment of not guilty. We do not remand to the Superior Court for resentencing, where Mattier's sentence is unlikely to be affected by our decision.
Commonwealth v. Mattier, supra. 

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