Petitioner for ReHearing — Canon v. Massachusetts

Supreme Court, D T

‘FILED

JAN 24 1978

MICHAEL RODAK, N. CLERK

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1977

‘77-1048

ANTHONY J. CANON,

Petitioner

V.

COMMONWEALTH OF MASSACHUSETTS,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME JUDICIAL COURT OF THE

COMMONWEALTH OF MASSACHUSETTS

Francis J. Dimento

Dimento & Sullivan

100 State Street

Boston, Massachusetts 02109

Of Counsel:

Daniel F. Featherston, r.

7 Water Street

Boston, Massachusetts 02109

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No.

ANTHONY J. CANON,

Petitioner

V.

COMMONWEALTH OF MASSACHUSETTS,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME JUDICIAL COURT OF THE

COMMONWEALTH OF MASSACHUSETTS

Francis J. Dimento

Dimento & Sullivan

100 State Street

Boston, Massachusetts 02109

INDEX

Opinion Of The Court Below....... sesceces. @

Parfedlction. ....occccce: ere 1 2

Questions Presented l 1

Constitutional And Statutory Provisions

4%%õÜ—¹—ůẽ⁵⁵ʒ!. ĩ«᷑ ́ . ⁵² . ©

e G8 Gis ie 4

Reasons For Granting The Writ .. 9

Conclusion....... „ 56880 21

Appendix A Court Of Appeals Opinion. 22

Appendix B - Massachusetts Statutes..... 64

TABLE OF CITATIONS

CASES

Barber v. Page, 390 U.S. 719,

725 (1968) eri ake

12

Bollenback v. United States,

326 U.S. 607 (1548 a ae 17

aja

Of Counsel:

Daniel F. Featherston, Jr.

7 Water Street

Boston, Massachusetts 02109

California v. Green, 399 U.S.

ke D 9

Chambers v. Mississippi, 410 U.S.

284, 295 (1973) 11

Douglas v. Alabama, 380 U.S. 405 (1965) 9

Dutton v. Evans, 400 U.S. 74, 89 (1970). 10

Mascusi v. Stubbs, 408 U.S. 204, 213

(1973) @eeesereeees eereereeeeses + — 9, 10,

11

Mattox v. United States, 156 U.S. 257

c 9

Motes v. United States, 178 U.S. 458

— W ee 9

Palko v. Connecticut, 302 U.S. 319,

„„ ee N

Pointer v. Texas, 380 U.S. 400 (1965) 9

Sparf v. United States, 156 U.S. 51,

A 0 20

Weiler v. United States, 323 U.S. 606,

. . ———— l

MISCELLANEOUS

Wigmore on Evidence. --10.11

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1977

NO.

ANTHONY J. CANON,

Petitioner

V.

COMMONWEALTH OF MASSACHUSETTS,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE MASSACHUSETTS SUPREME

JUDICIAL COURT

Petitioner, Anthony J. Canon, prays that a

writ of certiorari issue to review the opinion

and criminal judgment of the Massachusetts

Surpeme Judicial Court, entered on October 19,

1977, Petition For Rehearing denied on October

28, 1977.

ay

OPINION OF THE COURT BELOW

The opinion of the Massachusetts Supreme

Judicial Court appears in the Massachusetts

Supreme Judicial Court "advance sheets" for

1977, at page 2134, and is set out in Appendix A

hereto, pages 22-63, infra.

JURISDICTION

The opinion of the court below was entered

on October 19, 1977, and a Petition For Rehearing

was denied on October 28, 1977. The jurisdiction

of this Court is invoked under 28 U.S.C. 1257(3),

since petitioner seeks review of a decision of a

state supreme court.

QUESTIONS PRESENTED

1, Was it an unprecedented violation of the

Confrontation Clause of the Sixth and Fourteenth

Amendments for the state to admit into evidence

at petitioner's criminal trial the transcript of

an unavailable co-defendant's testimony in a

prior Civil action?

2. Did the Massachusetts Supreme Judicial

Court itself unconstitutionally deny petitioner

his right to trial by jury when it affirmed his

conviction by holding (with two, rare, dissents)

that had the jury been charged in accordance with

its new and unprecedented interpretation of a

-

o3-

conflict of interest statute the jury would have

convicted him (the court recognizing that the

actual charge was fundamentally different), so

there was no necessity to afford him a new trial?

While not presented herewith as grounds

for the issuance of the writ, if it issues, three

subsidiary constitutional questions "on the merits"

are also subtended by this case:

(a) Was petitioner denied his right

to a speedy trial?

b) Did the trial judge incorrectly

instruct the jury on the meaning of

proof beyond a reasonable doubt ?

(c) When in this case of first

impression the court below interpreted

the effective section of the state

conflict of interest law so as not to

require proof of any criminal intent,

nor that the public employee act in any

way (a promise to do so being held to

be sufficient), was such an interpreta-

tion constitutional, and if so, was the

statute nonetheless void for vagueness ?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Sixth Amendment, Constitution of the United

States of America (in relevant part): "In all

criminal prosecutions, the accused shall enjoy

-4-

the right ... to be confronted with the witnesses

against him...."

Section 1., Fourteenth Amendment, Constitu-

tion of the United States of America (in relevant

part): "...[NJor shall any State deprive any

person of life, liberty, or property, without due

process of law; ...."

The relevant parts of Massachusetts General

Laws, Chapter 268A, Sections 1 and 17(a) are set

out in Appendix B hereto, pages 64-65, infra.

STATEMENT OF THE CASE

For several years the petitioner was the

City Engineer of Marlborough, Massachusetts,

when in January, 1968, he invested, together with

two frier s, one a lawyer and one a real estate

broker, in an option to purchase some land in the

city, with a view toward resale to a developer

for construction of apartments. A special

permit from the City Council was necessary for

multi-family developments, and the Council had

only the month before granted the first such

permit in Marlborough, so the time seemed

propitious for the investment. The permit on

their land was granted in April, and they sold the

land to a developer in July, 1968, making a good

profit. Petitioner had had absolutely nothing to

do with securing the permit or making the sale,

either in his public position as City Engineer or

as a private engineer. All he did was invest. He

did nothing to help or hinder the project officially,

-5-

nor could he have done so had he wished to, given

the nature of his duties and the considerations

involved in the award of such permits. Petitioner

was repaid his investment and one-third of the

profit so far in July, 1968, the developer bought

the land, and gave a mortgage for the remaining

part of the purchase price.

In August, 1968, petitioner accepted a

similar engineering position in another city and

left Marlborough. For about two years he was

sent interest checks for his share of the mortgage

indebtedness by his co-venturers, and in the

latter part of 1970 he learned that the developer

had paid off the mortgage note, and he asked the

other two investors far his third of the resulting

additional profit (three times the initial pay-

ment), but they refused to pay him. He brought

suit on his contract for his final share of the

profit, and secured a judgment in the lowest state

court against his two erstwhile friends. They

appealled, and a jury trial was had in 1974. One

of the grounds of defense alleged by the two

defendants was that the contract was against

public policy, being in violation of the

Massachusetts bribery, extortion, and conflict

of interest laws, although no testimony or

argument was adduced directly to the latter issue,

and reading the trial transcript, one wauld be

unaware that it was an issue at all. In the midst

of the trial the judge suddenly directed a verdict

for the defendants, and, in an unusual step,

referred the matter to the District Attorney

for criminal action. (Some of the real estate

-6-

broker's testimony smacked of bribery and extor-

tion. )

In April, 1974, petitioner and his two co-

investors were indicted--more than six years

after his investment--the petitioner being

charged in four indictments with bribery and

three violations of the conflict of interest laws.

Petitioner's case was severed from the similar

charges against his co-defendants' and after a

year trying to get a speedy trial, he went to

trial in April, 1975.

The Commonwealth called as its first

witness the real estate broker co-investor and

co-defendant, Curley, who had testified at the

civil trial, in part, that petitioner had only been

let into the investment because he had threatened

to block the project otherwise. Curley was

permitted to refuse to testify on the ground of

self-incrimination. Over the petitioner's

objections the Commonwealth then read to the

jury large parts of Curley's civil trial testimony.

Curley's prior testimony was, in essence, the

state's case. At the civil trial he had been

called as a witness by the petitioner to establish

the existence of the contract and although the

mode of examination was in the nature of cross-

examination (as is permitted of an opposing party

in Massachusetts), Curley was then asked very

little about the aspects of his testimony which

were now so damning in a criminal context. Pe-

titioner testified at length in his own defense and

called other witnesses. The jury found the

-7-

petitioner not guilty of bribery and not guilty of

two of the three conflict of interest charges.

The trial judge, however, over petitioner's objec-

tion, had instructed the jury that as to the

conflict of interest charge of which he was con-

victed (G. L. c. 268A, §17a, pages 64-65, infra)

all that was needed to prove the crime was that

petitioner had accepted money from a private party

while a municipal employee in regard to a matter

in which the city had an interest. Petitioner

having admitted that he got some of the profit

due him from his investment, could not help

but be found guilty under that instruction, as the

trial judge even forthrightly admitted.

Petitioner's appeal to the Massachusetts

Supreme Court presented questions of first im-

pression in that court, both as to the elements of

the conflict of interest crime charged under the

statute and the admissibility in a criminal trial of

an unavailable witness' testimony at a prior

civil trial. Almost a year and a half after

appellate argument the court affirmed petitioner's

conviction in an unprecedented opinion, with two

members of the court writing lengthy dissents--

almost unheard of for that court. (See Appendix

A, pages 33-54, infra) The Court agreed with

petitioner that the trial judge had erred in

instructing the jury that a municipal employee's

receipt of money is alone a crime under the

statute, but said there was evidence that petitioner

had "promised" to render some engineering services

for the investment project, and even though he had

in fact rendered no services at all, that promise,

together with the receipt of money, constituted a

-8-

new crime. The court then, unbelievably, ruled

a new trial was however unnecessary, because even

if the jury had been properly instructed it would

have been "warranted" in finding the petitioner

guilty on the evidence -not on any "harmless error"

theory. (page 27, infra). As one dissenter phrased

his objection to such an unprecedented holding

(page 40 , infra): 5

. .. To say that the defendant's

conviction should stand because, in

any event a jury judging the facts of

a case tried on a correct theory of law

could have reached a verdict of guilty

is improperly to invade the province of

che jury....[TJhe construction given

the statute by the majority and myself

cannot be used retroactively to validate a

conviction based on an entirely different

theory of what constituted the offense."

Petitioner promptly filed a Petition For Rehearing,

pointing out (among other things) that the court's

unprecedented holding constituted a fundamental

denial of due process of law by denying him the

right to trial by jury (pages 55-62, infra). The

court also held, citing no apposite-authority, that

the admission of Curley's civil trial testimony was

not a violation of the Confrontation Clause (pages

29-32, infra), thereby becoming the only jurisdic-

tion and the only reported authority to ever so hold.

On October 28, 1977, the Petition For Rehearing

was denied (three days after its date) without

comment (page 63, infra), and this petition for a

writ of certiorari duly filed.

-9-

REASONS FOR GRANTING THE WRIT

The first reason for granting the writ is

to prevent the emasculation of the Confrontation

Clause of the Sixth and Fourteenth Amendments

worked otherwise by this opinion of the Massachu-

setts Supreme Judicial Court. The opinion is con-

trary to the Constitution as interpreted by

several opinions of this Court. It is the only

reported opinion of any court ever to hold that the

prior recorded testimony in a civil trial of a

witness unavailable! at a later criminal trial may

be utilized without violating the defendant's right

to confrontation.

This petitioner maintains that the admission

of Curley's civil trial testimony--the sine qua non

of the prosecution's case--was violative of the

fundamental protections the Confrontation Clause

affords criminal defendants, as delineated by

opinions of this Court for almost one hundred years,

most particularly over the last decade or so. 2

1 petitioner does not argue that Curley was not

"unavailable", having successfully invoked his

right not to incriminate himself, an issue questioned

by one of the dissenters below (pages 45-4, infra).

2 encusl v. Stubbs, 408 U.S, 204 (1972); Dut-

ton v. Evans, 400 U.S. 74 (1970); California v.

Green, 399 U.S. 149 (1970); Barber v. Page, 390

U.S. 719 (1968); Douglas v. Alabama, 380 U.S. 415

(1965); Pointer v. Texas, 380 U.S. 400 (1965);

_ Motes v. United States, 178 U.S. 458 (1900); Mattox

v. United States, 156 U.S. 237 (1895).

-10-

Petitioner cannot paint to any of these opinions as

being directly in point—or to any such opinion of

any couxt--none involve the use of civil trial

testimony at a criminal trial. See cases collected

at 5 Wigmore On Evidence (Chadbourne rev. 1974)

§§1395-1399. It would seem that generations of

prosecutors have recognized that such testimony

does not, inately, have sufficient "indicia of

reliability", as the Court said in Dutton v. Evans,

400 U.S. 74, 89 (1970), to satisfy the strictures

of constitutional confrontation. From the Court's

Opinions it is apparent that the existence of

sufficient prior cross-examination is the constitu-

tional touchstone, rather than the corollary of a

witness's physical presence--whether the cross-

examination afforded "the trier of fact a satis-

factory basis for evaluating the truth of the prior

statement." Mancusi v. Stubbs, 408 U.S. 204,

213 (1973). The Court has recognized in a dictum

that one kind of prior testimony, even with cross-

examination, may not afford such "a satisfactory

basis, saying in Barber v. Page, 390 U.S, 719,

725 (1968): °

. . . A preliminary hearing [in the

same criminal case] is ordinarily a

much less searching exploration into

the merits of a case than a trial,

simply because its function is the

more limited one of determining

whether probable cause exists to hold

the accused for trial,"

211

It would follow that the function“ of cross-

examination in any previous civil trial should be

viewed as even "more limited", and, constitu-

tionally, not "a satisfactory basis for evaluating

the truth of the prior" testimony of a witness

unavailable at the subsequent criminal trial.

It may be that such a generic rule is not

constitutionally mandated, and the circumstances

of each case examined to determine if the civil

trial cross-examination sufficiently tested and

probed the witness's testimony, so as to make it's

admission not a violation of the right to confronta-

tion. The Court has said, in Mancusi v. Stubbs,

supra, at 213, that "the adequacy of [the] examina-

tion at the first trial must be taken into considera-

tion." Even judged by such an ad hoc standard,

Curley's testimony should not have been admitted.

Petitioner maintained below, and reiterates here,

that only when the civil trial testimony was

subjected to actual, effective cross-examination

with an equivalent motive and similar considerations

can the admission of such prior testimony not violate

the Confrontation Clause. Such a position is a

clear inference from this Court s opinions, cited

in the last footnote. See also, Cha:nbers v.

Mississippi, 410 U.S. 284, 295 (1973). As one

leading commentator puts it:. the essential

purpose of confrontation... is satisfied if the

opponent has had the benefit of full cross-examina-

tion. 5 —— supra, p. 199. The court below,

however, ed it sufficient if the defendant had

an "opportunity" to cross-examine, whether he

utilized the "opportunity" effectively, or at all

-12-

(pages 30-31, infra). The parameters of this

fundamental right of confrontation cannot, how-

ever, be established with semantics. Pragmatism

is the key, as the Court recognized in Barber v.

Page, 390 U.S. 719, 725 (1968). The reality of an

effective cross-examination under similar

circumstances must be demonstrated. Here such

a demonstration is impossible. Curley and his co-

defendant in the civil action alleged as one defense

that the contract was void as a matter of public

policy because it was generally in violation of

Chapter 268A of the Massachusetts General Laws,

specifying none of the twenty-four sections of that

chapter, at least one of which, §23, prescribes

non-penal sanctions. That chapter includes the

common law strictures against bribery and

extortion, besides the modern "conflict of interest"

crimes. His testimony, that petitioner forced

his way into the investment by threatening to

block the project, goes more to classic extorvion

or bribery than it does the hypertechnical conflict

of interest crime defined for the first time, not

incidentally, in the case. None of his testimony was

apparently relative to the crime for which peti-

tioner was conficted. The point is elaborated

further in Mr. Justice Liacos' dissent in the court

below (pages 47-50, infra):

w.. . [The circumstances in which

the former testimony was given must

be examined to ascertain whether the

testimony was given in compliance with

the requisites of the confrontation

clause...."

213.

"Opportunity and motive fox cross-

examination are the most crucial

factors in any evaluation of the reliability

of former testimony.... More import-

antly, the considerations which guide the

conduct of the cross-examination or the

decision to waive cross-examination

during the prior trial must be functionally

equivalent to the considerations which :

prevail at the later trial where the former

testimony is introduced.... The issue

on which the testimony was introduced

in the first proceeding as well as the

purpose for which the testimony was

offered must be substantially similar

to the issue and purpose for which the

same testimony is offered at the sub-

sequent criminal trial. See McCormick

§257. The issue and the purpose for

offering the testimony need not be

identical in both proceedings,. but

they must be sufficiently similar

to ensure that the defendant had the

same motive for cross-examining the

witness at the earlier proceeding as

he would have had at the later criminal

trial, if the witness had appeared to

testify...."

*. . . Curley was called by the

defendant to testify about the real

estate venture and the oral agreement

which made the defendant a co-investor

in the project. Having called the opposing party

fii

while putting in his own case, the

defendant was entitled to cross-examine

him, G. L. c. 233, §22. However, the

issue on which Curley's testimony was

introduced was whether an agreement to

include the defendant in the real estate

venture had been reached by the parties.

The defendant's motive for examining

Curley was to demonstrate that an

agrzement had been concluded which made

the defendant a participant in the

project and entitled him to receive an

equal share of the profit realized by

the venture. Conversely, the testimony

given by Curley in the civil trial was

introduced by the Commonwealth at

the defendant's criminal trial to prove

that the defendant had illegally used

his public office to foster private gain.

Had Curley testified in person at the

defendant's trial on the indictments,

the defendant's motive for cross-

examining him would certainly have

been altered. He would have undoubtedly

probed for inaccuracies and inconsistencies

in Curley's testimony and he would have

had a stranger motive to impeach the

witness.

"Equally important in considering

whether the defendant's motive for cross-

examining the witness was the same in

both proceedings is the obvious shift

in the underlying liability associated

238

with the cases. In the civil action the

defendant sought a financial recovery

on the basis of an alleged breach of

contract, but in the criminal prosecu-

tion, not only his liberty, but his

personal and professional reputation

in the community was at stake. The

crucial question whether private services

were promised or rendered to the private

project by the defendant was not in issue

at the civil trial...."

As a general consideration, what civil advocate

could function if the lower court's view of the

Confrontation Clause is let stand? How could he

execute his professional responsibility if he had

to inject as a consideration into all civil cross-

examinations the possible impact of the witness's

testimony at every conceivable criminal trial

which might some day find that testimony to be

relevant? Clearly, such a task is impossible, and

yet the abberrational holding below would require

that it be assayed or that unknowable risks be

unintentionally borne.

The lower court's interpretations of the

Confrontation Clause and the opinions of this

Court are clearly erroneous, and this case presents

a compelling occassion for the Court to continue

its recent definitions of the constitutional

parameters involved and obviate the patent unjust

progeny of the opinion in this case if it is let

stand.

-16-

The second reason for granting the writ also

presents the Court with a unique question of first

impression. The Massachusetts Supreme Judicial

Court opinion agreed with the petitioner's argu-

ment that the trial judge erroneously interpreted

G. L. c. 268A, §17(a), when he instructed the jury

"that only the receipt of money need be shown to

justify the conviction." The court refused to

reverse, however, because it said: "we think the

jury were warranted in finding chat petitioner had

promised to render engineering advice as considera-

tion for the opportunity to invest, so if the jury had

been instructed in accordance with the court's new

and unique interpretation of the statute, such a

"promise", taken in conjunction with his admitted

receipt of part of his investment profit, would

have resulted in his being found guilty anyway! Both

dissenters firmly pointed out that such a holding

"is improperly to invade the province of the jury“

that "the construction given the statute... cannot be

used retroactively to validate a conviction based on an

entirely different theory of what constituted the

offense. .. [The conviction should be reversed so

since Colonial times it has been the unusual

custom of the Massachusetts Supreme Judicial Court

to discourage any dissenting opinions. Rarely is one

written--very rarely are two dissents recorded. The

two strong dissents in this case, addressing both

the reasons forwarded here to grant the writ, are

at least strong judicial concurrence with petitioner's

contention that error was committed below.

-17-

that the defendant can have the opportunity to

defend this case on a theory consistent with the

[newly devised] statutory prohibition." The dissents

do not specifically base their objections on consti-

tutional grounds, but petitioner contends that the

Massachusetts Supreme Judicial Court itself

unconstitutionally denied him his right to trial by

jury by constituting itself as a super jury“ (as he

argued in his Petition For Rehearing, page 61,

infra) and saying that a properly instructed jury

would have convicted him.

The holding below thrusts deeply into the heart

"of the very essence of a scheme of ordered

liberty." Palko v. Connecticut, 302 U.S. 319, 325

(1937). The holding is so aberrational, however,

that petitioner's research has not located much in the

the way of apposite authority that constitutional

error was committed here. The closest case seems

to be Bollenback v. United States, 326 U.S. 607

(1946). The defendant was convicted of conspiracy to

transport stolen securities in interstate commerce,

only after the trial judge erroneously instructed the

jury "that possession of stolen property in another

State than that in which it was stolen shortly after

the theft raises a presumption that the possessor

was the thief and transported stolen property in

interstate commerce...." The Second Circuit held

the charge was erroneous, but refused to reverse

because the jury "could" have convicted the defen-

dant as an accessory after the fact on the evidence

adduced. In an opinion written by Mr. Justice

Frankfurter, this Court reversed, only Mr. Justice

Black dissenting (on a ground not here in issue).

-18- 0

-19-

Noting the Second Circuit's basis for not reversing, to disregard the judge's bad law if he in

despite the erroneous charge, the Court went on fact misguides them. To do so would

(at 610; 613-615): e transfer to the jury the judge's func-

„... But Bollenback was neither

charged nor tried nor convicted as an

accessory after the fact. The Govern-

ment did not invoke that theary in the

two lower courts and disavows it here.

And rightly so. The receipt of stolen

securities after their transportation

across State lines was not a federal

crime at the time of the transactions

in question.

"... That Court [of Appeals], as

we have seen, properly rejected the

propriety of leaving the case to

the jury as the trial judge had left

it, but sustained the conviction

on its own accessory-after-the-fact

theory.... A conviction ought not to

rest on an equivacal direction to the

jury on a basic issue. And a charge

deemed erroneous by three circuit

judges of long experience and who have

a sturdy view of criminal justice is

certainly not better than equivocal.

The Government's suggestion really

implies that, although it is the judge's

special business to guide the jury by

appropriate legal criteria through

the maze of facts before it, we can

say that the lay jury will know enough

tion in giving the law and transfer to the

appellate court the jury's function of

measuring the evidence by appropriate

legal yardsticks."

. . . In view of the Government's

insistence that there is abundent evidence

to indicate that Bollenback was implicated

in the criminal enterprise from the

beginning, it may not be remiss to remind

that the question is not whether guilt may be

spelt out of a record, but whether guilt

has been found by a jury according to the

procedure and standards appropriate for

criminal trials in the federal courts."

u... From presuming too often all

errors to be 'prejudicial , the judicial

pendulum need not swing to presuming

all errors to be "harmless" if only the

appellate court is left without doubt that

one who claims its corrective process

is, after all, guilty. In view of the place

of importance that trial by jury has in

our Bill of Rights, it is not to be supposed

that Congress intended to substitute the

belief of appellate judges in the guilt of

an accused, however justifiably engendered

by the dead record, for ascertainment of

guilt by a jury under appropriate judicial

guidance however, cumbersome that process

may be.

-20-

That appellate court's usurpation of the jury's

function is very much the same as in this case,

and while the Court does not specifically characterize

the error as one of constitutional dimension, those

are the undertones, particularly the reference to "our

Bill of Rights. Another dictum, only the year

before Bollenback, finds a unanimous Court sounding

the same fundamental tone:

„. . We are not authorized to look

at the printed record, resolve conflicting

evidence, and reach the conclusion that

the error [in the jury charge] was harm-

less because we think the defendant was

guilty. That would be to substitute our

judgment for that of the jury, and under

our system of justice, juries alone have

been entrusted with that responsibility. "

(Emphasis supplied.) Weiler v. United

States, 323 U.S. 606, 611 (1945).

A similar thought was set out by the Court a half

a century before in Sparf v. United States, 156

U.S. 51, 106 (1895):

„. . . In this seperation of the

functions of court and jury is found

the chief value, as well as safety,

of the jury system. Those functions

cannot be confounded or disregarded

without endangering the stability of

public justice, as well as the security

of private and personal rights.

21

The Massachusetts Supreme judicial Court in

this case patently has "confounded" and dis-

regarded" "the functions of court and jury", has

unconstitutionally deprived the petitioner of his

right to trial by jury, and the Court is importuned |

to issue the writ and firmly erase this danger

to "the stability of public justice.

CON CLUSION

For the reasons set forth above, it is respect-

fully submitted that this petition for a writ of

certiorari should be granted.

Francis J. Dimento

Dimento & Sullivan

100 State Street

Boston, Massachusetts

02109

Of Counsel:

Daniel F. Featherston, Jr.

7 Water Street

Bostor., Massachusetts 02109

222

APPENDIX A

COMMONWEALTH V. ANTHONY J. CANON

BY THE COURT. The defendant was convicted

of violating the conflict of interest law, G. L.

c. 268A, §17(a). He contends: (1) There was

no evidence that he rendered any services to the

invididuals interested in a real estate venture in

which he invested, and their interest was not

adverse to the interest of the city where he was

a city engineer. (2) His constitutional right to

a speedy trial was denied. (3) The testimony of a

co-indictee as a previous civil trial was erroreously

admitted in evidence. (4) The judge erroneously

instructed the jury on the meaning of reasonable

doubt. We affirm his conviction.

On April 8, 1974, the defendant was indicted

for violation of G.L. c. 268A, §§2(b), 3(b), 17(a),

and 19. He was convicted under §17(a) but acquitted

of the other three charges. He was

sentenced to probation for a year, and the proba-

tion was terminated on his motion in October,

1975. The case was made subject to G. L. c. 278,

§§33A-33H, and we transferred the appeal to

this court on our own motion.

-24-(Tnere is NO Page -23-)

The following facts are not in dispute. For

several years ending in August, 1968, the

defendant was the city engineer of Marlborough.

Curley was a real estate broker, and Lynch was an

attorney. In January, 1968, the three agreed to

contribute $500 each to an investment in an option

on land in the city, with a view to obtaining a

special permit for apartments. The defendant

gave Curley a check for $500, the permit was

obtained, the land was bought for $40,000 and

resold for $100,000, and the defendant received

$5,500 in the summer of 1968, the return of his

investment and part of his share of the profit.

Later he sued Curley and Lynch for the balance

of his share, and they defended on the ground

that the agreement was illegal under G.L. c. 268A.

At trial of the civil acti on in 1974 the judge

directed a verdict for the defendants and referred

the case to the district attorney. Further facts

will be stated in connection with the claims of

error.

1. Directed Verdict. The defendant's

motion for a directed verdict was made and denied

at the close of the Commonwealth's case, at the

end of all the evidence, ad again, at the invitation

of the judge, after the verdict. The following

evidence, viewed in a light most favorable to the

Commonwealth, is pertinent. Lynch was attorney

for the owner of the land, and told the owner that

a local broker, Curley, was interested in buying it.

In 1967 the defendant and Lynch discussed pooling

their professional talents and money, and in

December, 1967, the defendant advised Curley

28.

and Lynch that the land could be connected to

Marlborough sewerage, giving them a rough cost

figure. Lynch told Curley that he had been to the

defendant's office and that the deal would not

go through unless the defendant "was aboard."

Thereafter Curley went to the defendant's

office to examine a plot plan and a typographical

survey with respect to the extension of sewer

lines. The defendant told Curley the property

could be serviced by sewers "if I say it can be,"

but "unless I'm aboard on this thing, this doesn't

go." On January 9, 1968, the defendant met with

Curley and Lynch and declared that "there's no

way this is going any place without me aboard."

He then executed his check and left it on the

table, ard it was agreed that the defendant

would contribute general engineering advice to

the project. The agreement was not put in

writing because of the defendant's position as

city engineer and Lynch's association in law

practice with the mayor and city solicitor. The

next day, January 10, Curley and the owner of the

land executed a purchase and sale agreement for

a price of $40,000 with a $1,000 deposit, contin-

gent on the special permit.

The defendant's responsibilities as city

engineer included evaluating plans for the

installation of utilities including sewer and

water service in new housing developments. A

plan of the project was seen on a drafting table

in his office, and he said he had made a study of

the project and had reached certain conclusions

about sewer and water service. But his superior

i.

told him he need not become involved, since the

project had been assigned to a private consulting

firm.

The statute, G. L. c. 268A, §17(a), provides:

"No municipal employee shall, otherwise than as

provided by law for the proper discharge of

official duties, directly or indirectly receive or

request compensation from anyone other than the

city or town or municipal agency in relation to any

particular matter in which the same city or town

is a party or has a direct and substantial interest."

It is beyond question that the evidence warranted

findings that the defendant was a "municipal

employee," that he received an economic benefit

from persons other than the city, that he

received it "in relation to" the special permit for

the apartment project, that the granting of the

permit was a "particular matter," and that he

was not acting "as provided by law for the proper

discharge of official duties." It is contended,

however, that the economic benefit was not

compensation, defined in G. L. c. 268A, §1, as

"any money, thing of value or economic benefit

conferred on or received by any person in return

for services rendered or to be rendered by himself

or another." It is further contended that the

city was not a "party" and did not have "a direct

and substantial interest" in the permit.

As to "compensation," the contention is

that the defendant received money as a return on

his investment rather than "in return for

services rendered or to be rendered." But we

-27-

think the jury were warranted in finding that the

defendant requested and received compensation

in the form of an opportunity to participate in

the realty investment, and that he received that

compensation, at least in part, in return for his

promise of general engineering advice "to be

rendered" by him. That was enough to make it

"compensation, " even if no services were ever

rendered or if the investment produced no profit.

Moreover, there was evidence that some services

were actually rendered, and that the investment did

produce profit. The value of the investment was

contingent on the granting of the special permit,

which occurred on April 15, 1968, and the defendant

received money on account of the profit the

following summer. We think he may properly be

said to have "received" compensation after April

8, 1968. Cf. Commonwealth v. Dutney, Mass.

App. Ct. - (1976). He was indicted

within the six-year limitation period thereafter.

G. L. c. 277, §63. We need not pass on the

Commonwealth's contention that he was paid for

the negative service of not blocking the project.

As to the city's "interest" in the granting

of the special permit, we think it is clear that

the "interest" need not be financial. Cf. G. L.

c. 268A, §4, where there is explicit reference to

a "financial interest." It is hard to hypothesize a

“particular matter" involving municipal action in

which it can be said with assurance that the

municipal interest is indirect or insubstantial.

Certainly the city's interest in the proper

sewerage for a major apartment development was

-28-

neither remote nor inconsequential. It is

contended, however, that the city's interest was

not adverse to that of the developers, since there

was testimony that the project was a "good deal"

for the city. We need not consider whether there

is any requirement that the interest of the city

be adverse to that of the person paying the

compensation. For any such requirement is fully

met when the payor is applying for a municipal

decision and the city is castinthe role of objective

and impartial arbiter.

The defendant suggests, though he does not

argue in any comprehensible way, that the judge's

instructions were somehow inadequate. The

judge outlined what the statute says, using the

statutory language, and the defendant took no

exception to the charge. Though the charge may

not have been as complete nor as helpful as it

might have been, we think it was adequate. As

the judge said to counsel, the jury probably had no

choice but to come back with a verdict of guilty,

since the defendant had admitted the essential

elements of the crime.

2. Speedy trial. The pre-indictment delay

from 1968 to April, 1974, seems to be attributable

to the secrecy of the venture. See United

States v. Lovasco, U. S. 97S. Ct. 2044 (1977).

More than two months after the indictments the

defendant filed several discovery motions,

accompanied by a motion for speedy trial, but

his counsel did not appear on the date scheduled

for a hearing on those motions. Without objection

-29-

the hearing was postponed until October, 1974.

At that time the prosecutor expressed willing-

ness to try the case in November, but the

defendant's motion to sever his trial from those

of Curley and Lynch was allowed and the prosecuter

wanted to try one or both of them before the

defendant. The defendant made a renewed motion

for speedy trial in November, but for reasons not

disclosed it was not heard until January, 1975.

Trial of Curley and Lynch had been schedi led for

January 20, and the defendant's case was scheduled

as the first case out on February 3. On January

28, however, the judge vacated that order. A

motion filed on April 2 to dismiss for want of a

speedy trial was denied on April 8, and trial began

April 16, 1975, about a year after the indictments.

In the absence of any showing of prejudice, we

think no denial of the defendant's constitutional

right to a speedy trial is shown by this sequence

of events. Barker v. Wingo, 407 U.S. 514, 530-531

(1972). Although the delay was substantial, the

defendant was not incarcerated, and there was

no problem of loss of witnesses or failure of

memory during the period of delay attributable to

the prosecutor. That period was a little over

six months, and is explained in part by the

problems arising from the allowance of the

defendant's motion to sever.

3. Recorded testimony. At the trial, out

of the hearing of the jury, Curley invoked his

privilege against self-incrimination, and the

judge allowed a motion to introduce his recorded

testimony at the civil trial. It is now claimed

that the admission of this evidence violated

-30-

the defendant's constitutional right to confront

the witness against him.

Although the defendant does not argue the

point, we note that prior recorded testimony is

admitted when the witness is unavailable. We

have applied this rule to witnesses who were

dead, missing, or physically unable to testify

Commonwealth v. Clark, 363 Mass. 467, 470

(1973), and cases cited. We now apply it toa

case where the witness makes a plausible claim

of his privilege against self incrimination, and

is excused from testifying by the judge. United

States v. Elmore, 423 F.2d. 775, 778 (4th Cir. ),

cert. denied, 400 U.S. 825 (1970). United States

v. Mobley, 421 F. 2d 345, 350-351 (Sth Cir. 1970).

See McCormick, Evidence §253 (2d ed.)(1972); 4 J.

Weinstein & M. Berger, Evidence par. 804(a)[01]

(1976); Annot., 45 A. L. R. 2d 1354 (1956).

The defendant contends that evidence given

at a prior civil trial is not admissible at a

subsequent criminal trial, since the parties and

issues are not the same. We disagree. There is

no requirement of "privity," "reciprocity," or

"mutuality"; it is only the party against whom

the prior testimony is now offered whose presence

in the prior suit is significant. See McCormick,

Evidence §256 (2d. ed. 1972); 5 J. Wigmore,

Evidence §1388 (Chadbourn rev. 1974). The

significant feature is whether that party had an

adequate opportunity for cross-examination at

the prior trial. Cf. Travelers Fire Ins. Co. v.

Wright, 322 P. 2d 417, 421 (Okla. 1958). (testimony

in prior criminal case admitted in civil section) See

McCormick, supra, §257; Fed. R. Evid. 804(b)(1)(1975).

221.

Actual cxoss- examination at the prior trial

is not required, but the party against whom the

testimony is now offered must have had an

adequate opportunity to exercise the right to

cross-examine if desired. See 4 J. Weinstein & M.

Berger, supra, par 804 (b)(1)[02]. The defendant

in the present case called Curley as a witness in

the prior civil case, and was entitled to cross-

examine him as an adverse party. G.L. c. 233,

§22. The substantial question is whether the

defendant then had an adequate motive for the

testing on cross-examination of the credibility of

Curley's testimony. See 4 J. Weinstein & M. Berger,

Supra, par 804(b)(1)[(04]; McCormick, supra, §257.

The defendant was the plaintiff in the civil

case, and Curley as one of the defendants in the

civil case was defending on the ground that the

agreement of the parties was illegal by reason of

violation of G. L. c. 268A. That issue was sub-

stantially the same as the issue tried in the

present case. It is not fatal that, as a tactical

matter, the examination of Curley at the civil

trial was primarily directed to the formation

and terms of the agreement rather than to its

illegality. Cf. Poe v. Turner, 490 F.2d 329, 331

(10th Cir. 1974) (cross-examina* n waived "on a

matter that was not a real issue"). The formation

and terms of the agreement were very damaging

to the defendant on the issue of illegality in both

trials.

The defendant argues that his constitutional

right to confront the witnesses against him imposes

more rigerous limitations than the general law

-32-

of evidence. He relies particularly on Mancusi v.

Stubbs, 408 U.S. 204, 216 (1972), where the Court

said that the prior testimony there in issue bore

sufficient "indicia of reliability" and afforded

"the trier of fact a satisfactory basis for

evaluating the truth of the prior statement."

In that case the defendant's first conviction had

been set aside by reason of denial of the effective

assistance of counsel, and at his second trial an

important witness had become unavailable. Recorded

testimony given by that witness at the first trial

was admitted in evidence, and the defendant

contended that the cross-examination at the first

trial had been inadequate. The Court held that

constitutional requirements were satisfied, since

"there was an adequate opportunity to cross-

examine" at the first trial, and counsel "availed

himself of that opportunity."

We do not think the Court intended to lay

down an absolute requirement of actual cross-

examination as well as adequate opportunity for

cross-examination for cases like the present in

which there was no problem of ineffective

assistance of counsel. In the present case "indicia

of reliability" are furnished by the fact that the

defendant, as plaintiff in the civil case, had

called Curley as a witmess to provide part of the

basis for his claim, and by the fact that the

defendant's own testi y at both trials

corroborated much of Curley's testimony.

4. Reasonable doubt. In his charge on

reasonable doubt, the judge instructed the jury

that they must be convinced of the defendant's

=-33-

guilt with "the kind of certainty you have when you

@® involved in those matters of the highest

importance to you in your own life." We have

several times criticized such instructions as

confusing degree of certainty with degree of

importance. As in many other such cases, we

think the charge in this case, taken as a whole,

adequately conveyed the concept of proof beyond a

reasonable doubt. See, e.g. Commonwealth v.

Fielding, Mass. Adv. Sh. (1976) 2290, 2315-2316.

Contrast Commonwealth v. Ferreria, Mass. Adv.

Sh (1977) 1594, 1602-1611,

Judgment affirmed.

LIACOS, J. (dissenting, with whom Abrams,

J., joins). The defendant in this case is entitled

to a new trial on the grounds that (1) the charge

to the jury who convicted the defendant did not

reflect the construction of G.L. c. 268A, §17(a),

siven by the majority opinion; (2) he was convicted

under a theory of law which misconstrued the

nature of G. L. c. 268A, §17(a);1 and (3) the

admission of the prior recorded testimony as part

of the Commonwealth's case-in-chief denied the

defendant his constitutional right to confront

his accuser.

Irhe defendant adequately excepted to the

charge on this issue by incorporating his arguments

relative to his motion for a directed verdict on

the issue of the propriety of the charge. See

Commonwealth v. Freeman, 352 Mass. 556 (1967).

-34-

This is the first case to reach this court

calling for a construction of G. L. c. 268A, §17(a).

The task of interpreting the statute, in harmony

with the other provisions of G. L. c. 268A, is one

of not inconsiderable difficulty, as is evident

from the apparent confusim of both parties and

the trial judge as to the nature and scope of the

offense defined in §17(a).

The view of the statute taken by the

majority of this court is a veiw with which I am

in accord. The fact is, however, that this

record reveals it as a view not followed at the

trial by either the prosecutor or an able trial

judge -- nor is it a view in accord with that of

the Appeals Court. Cf. Commonwealth v. Dutney.

Mass. App. Ct. Adv. Sh. (1976) 682. Some

further elaboration of the meaning of §17 (a) seems

appropriate in this circumstance.

1. Chapter 268A of the General Laws is a

comprehensive measure aimed at thwarting the

improper use of influence on State and local

public officials. Section 17(a), on which the de-

fendant's conviction is grounded, it specifically

directed at regulating the conduct of municipal

employees which is inconsistent with the

responsibilities inherent in the proper performance

of a government job. Conflict of interest laws

such as §17(a) occupy an area between bribery or

the offer and acceptance of gratuities and innocent

or trivial association with persons seeking the

favor of municipal authorities for personal or

business reasons. See Staff Report to Subcommittee

8.

No. 5, "The Conflict of Interest Laws, House

Committee on the Judiciary, 85th Cong., 2d Sess.

(March 1, 1958).

The conduct proscribed by §17(a) is the

request or receipt, by a municipal employee, of

compensation from a nonmunicipal source whose

private interests relate to a particular matter in

which the municipality has a direct and substantial

interest. Compensation, as defined by §1 of c.

268A, includes "any money, thing of value or

economic benefit conferred on or received by any

person in return for services rendered or to be

rendered by himself or another."

Section 17(a) tracks the provisions of 18

U.S.C. §203 (1970). See Buss, The Massachusetts

Conflict of Interest Statute: An Analysis, 45

B. U. L. Rev. 299 (1965); R. Braucher, Conflict

of Interest in Massachusetts, in Perspectives

of Law, Essays for Austin Wakeman Scott 8

(1964); see generally B. Manning, Federal Conflict

of Interest Law (1964). As such, it is clear that

the intent of the Legislature in enacting §17(a)

was to incorporate, as the crucial elements of

this offense, those elements which are the basis

of the correlative Federal offense. These

elements are (1) the receipt of compensation as

defined in §1, (2) contingent on the receipt or

promise of services rendered. In the absence of

either element, the apparent impropriety of the

official's conduct does not make out the offense

under 517 (a). See Manning, supra at 36. Conversely,

it is immaterial that the services rendered or to

be rendered in exchange for the compensation may

286.

be viewed as otherwise proper in nature. Id. at 36,

43. See May v. United States, 175 F. 2d 994, 1006

(D.C. Cir. 1949). This section of the statute

reflects the old maxim that "a man cannot serve

two masters." It seeks to preclude circumstances

leading to a conflict of loyalties by a public

employee. As such, it does not require a showing of

any attempt to influence -- by action or inaction--

official decisions. What i« required is merely a

showing of an economic benefit received by the

employee for services rendered or to be rendered

to the private interests when his sole loyalty

should be to the public interest.

It seems equally clear that not every act by

a municipal employee may serve as the basis of an

indictment which fails to discriminate between

the various activities proscribed by the statutory

scheme. What once were the activities involved in

the so called bribery offenses under G. L. c. 268,

§8, are now covered by G. L. c. 268A, particularly

§§2(b) and 3(b). See Commonwealth v. Stasiun, 349

Mass. 38 (1965). Other penal offenses are

defined by the statute in various sections.

Additionally, a number of proscribed acts are

covered by G. L. C. 268A, 523, in nonpenal terms.

Such latter acts may be grounds for administra-

tive action against the offending employee whether

covered by the criminal provisions of the statate

or not.

In the case currently before the court for

decision, the defendant cc des that he was the

city engineer of Marlborough during the planning

2.

stages of the real estate investment scheme and

at the time he received an initial payment of

55, 000 following the sale of what was called the

Davenport parcel to the developer. However, the

defendant argues, in effect, that the $5, 000 he

received did not constitute compensation from a

private source within the meaning of the statute.

The defendant does not deny that the $5,000 pay-

ment he accepted was a direct consequence of the

sale of the Davenport property to the developer,

but he contends that the Commonwealth failed

to demonstrate that he had rendered any services

in exchange for the economic benefit he realized

on the real estate venture. He argues that he

was an investor like any other and that, absent

evidence of services (or the promise of them)

which were exchanged for compensation from a

private source, the Commonwealth makes out

no case under §17(a). The Commonwealth's response

appears to be that a prima facie case is made by

evidence (here present) that the defendant promised

not to interfere with official municipal approval

of the project if he was allowed to become an

investor in the project. Assuming the Common-

wealth's argument to be valid, it is an argument

more properly addressed to the offense sen

under G. L. c. 268A, 82 b) (3). 2 or §3(b), 3

charge which went to the jury and of which | the

2

General Laws c. 268A, §2(b)(3) reads as

follows: "(b) Whoever, being a state, county or

municipal employee or a member of the judiciary

38

defendant was acquitted. I cannot ascribe to the

Legislature an intent to be redundant. It seems

clear that, if the defendant were receiving a

benefit in order to affect his official conduct or

to refrain from interfering with the progress of

an application for a special permit as was here

involved, that might well be ＋ offense under

G. L. c. 268A, §§2(b) and 30b)4. Section 17 (a), on

or person selected to be such an employee or

member of the judiciary, directly or indirectly,

corruptly asks, demands, exacts, solicits, seeks,

accepts, receives or agrees to receive anything of

value for himself or for any other person or entity,

in return for ...(3) being induced to do or omit to

do any acts in violation of his official duty."

5 General Laws c. 268A, §3(b), reads as

follows: xb) Whoever, being a present or former

state, county or municipal employee or member of

the judiciary, or person selected to be such an

employee or member of the judiciary, otherwise

than as provided by law for the proper discharge of

official duty, directly or indirectly, asks, demands,

exacts, solicits, seeks, accepts, receives or

agrees to receive anything of substantial value for

himself for or because of any official act or act

within his official responsibility performed or to

be performed by him."

Ack. Commonwealth v. Dutney, Mass. App. Ct.

Ct. (1976) (Mass. App. Ct. Adv. Sh. [1976]

682.) To the extent that Dutney indicates that

the offenses proscribed by G.L. c. 268A, §§2(b)

and 3(b), are identical with that defined by §17(a),

it should not be followed. I do not reach the point

-39-

the other hand, reaches an area of activity not

proscribed by either of those sections. In short,

I construe this section so as to make criminal

what had not been so prior to the enactment of

G.L. c. 268A, namely, to receive compensation

from private sources for services rendered, or

to be rendered, to such private sources in any

particular matter in which the municipality has a

direct and substantial interest.

It is incumbent on the Commonwealth under

this view of §17(a) to show that the employee

rendered or promised services in exchange for

money and in relation to a particular matter in

which the municipality has a direct and substantial

interest. The particular matter in this case is

the issuance of the special permit.

The Commonwealth argues that the defen-

dant's general "study" of the sewer problems for

the site constitutes a rendering of services. I

would agree that as a general matter such action in

exchange for money would constitute a violation of

§17(a), and there was sufficient evidence of such

services in exchange for compensation (i.e.

defendant's investment interest) to deny the

motion for a directed verdict. Where the

difficulty arises is that neither the judge's view

of the case as expressed in his denial of the

motion for a directed verdict, his charge, nor

whether Dutney correctly holds that §3(b) is a lesser

included offense under &2(b).

-40-

the Commonwealth's response to the defendant's

motion for a bill of particulars or its presenta-

tion of the case defined this aspect as the Common-

wealth's basis of alleged criminal conduct at the

trial. To say that the defendant's conviction

should stand because, in any event, a jury judging

the facts of a case tried on a correct theory of

law could have reached a verdict of guilty is

improperly to invade the province of the jury to

weigh the relevant evidence in accord with the

applicable legal principles.

The law of this case, as tried and submitted

to the jury, was not in accord with the majority's

view of the nature of the crime under the statute.

See Commonwealth v. Graves, 363 Mass. 863, 868

(1973). The judge's understanding of §17(a) seemed

to rest on the proposition that only the receipt of

money need be shown to justify the conviction.

Nowhere were "services" as discussed here or in

the majority opinion defined; nor need they have

been under the judge's view of the case. It

follows that the construction given the statute

by the majority and myself cannot be used retro-

actively to validate a conviction based on an entirely

different theory of what constituted the offense.

I believe the conviction should be reversed so that

the defendant can have the opportunity to defend

this case on a theory consistent with the

statutory prohibition.

2. During the Commonwealth's case-in-

chief, testimony given at a prior civil trial by a

co-indictee, one Curley, was read in evidence

41

following Curley's refusal to testify on Fifth

Amendment grounds. The defendant contends

that the admission of Curley's former testimony

violated his Sixth Amendment right "to be con-

fronted with the witnesses against him."> I

would hold that the introduction in this case of

testimony given in a prior civil proceeding by an

individual who was thereafter indicted with the

defendant abridged the defendant's constitutional

right to be confronted with adverse witnesses.

Where the unavailability of a witness has

been diligently established, we have sanctioned

the introduction of testimony given at the

defendant's initial criminal trial involving similar

charges at which the deferdant had an opportunity

to cross-examine the witness. Commonwealth v.

Clark, 363 Mass. 467, 470 (1973). Commonwealth

v. Gallo, 275 Mass. 320, 328-334 (1931). Common-

wealth v. Glassman, 253 Mass. 65, 73-74 (1925).

Commonwealth v. Rickards, 18 Pick. 434, 437-440

(1837). Accord, Mancusi v. Stubbs, 408 U.S. 204

(1972); Mattox v. United States, 156 U.S. 237 (1895).

"Article 12 of the Declaration of Rights of

the Massachusetts Constitution sets forth a

similar right to meet adverse witnesses "face to

face." The confrontation clause of the Sixth

Amendment to the United States Constitution was

applied to State proceedings through the Four-

teenth Amendment in Pointer v. Texas, 380 U.S.

400 (1965).

-42-

Similarly, we have authorized the introduction

at a criminal trial of testimony given at pre-

liminary hearings in the same criminal proceedings

when the defendant had the opportunity during the

preliminary hearing to cross-examine the witness

and where the testimony of that witness was

demonstrated to be unavailable at the defendant's

trial. Commonwealth v. Caine, 366 Mass. 366,

371-372 (1974). Commonwealth v. Mustone, 353

Mass. 490, 492-493 (1968). Commonwealth v.

Caruso, 251 Mass. 362, 366-367 (1925). Cf.

Andrews, petitioner, 368 Mass. Adv. Sh. (1975)

2550, 2560. Accord, United States v. Bell, 500 F.

2d 1287, 1290 (2d Cir. 1974); Havey v. Kropp, 458

F.2d 1054, 1057 (6th Cir. 1974), CE. Rems

v. Green, 399 U.S. 149 (1970) (testimony given by

a witness at a preliminary hearing, at which the

defendant had an opportunity to cross-examine the

witness, was properly introduced at the defendant's

subsequent trial when the witness was available

and subject to full cross-examination); United

States v. Ricketson, 498 F.2d 367, 374 (7th

Cir. 1974); United States v. Singleton, 460 F. 2d

1148, 1152-1153 (2d Cir. 1972) (admitting a

deposition at the defendant's trial did not violate

the Sixth Amendment where the defendant had an

opportunity to cross-examine the deponent when

the deposition was taken and where the deponent

was unavailable at trial).

The question presently before us is markedly

different from that decided in the preceding cases.

Nor is the question here the same as that before

-43-

the court in the recently decided case of Common-

wealth v. DiPietro, Mass. Adv. Sh. (1977) 1971.

The issue here is whether a defendant's constitu-

tional right of confrontation is breached by the

introduction of former testimony given during a

civil trial by a witness whose live testimony

becomes "unavailable" at the defendant's subsequent

criminal trial, This case exhibits a perceptible

discord between the interests protected by the

right of confrontation and the rationale which

supports the well recognized exception to the

hearsay rule permitting, under special conditions,

the admission of testimony given during a prior

judicial proceeding.

Both the courts® and legal commentators’

have recognized that the confrontation right and

the hearsay rule safeguard similar values. How-

ever, the courts have been careful to note that

the parameters of the confrontation clause and

the hearsay rule are not congruent. Therefore,

even though some hearsay statements are

constitutionally admissible, exceptions to the

hearsay rule do not uniformly contour the confronta-

tion clause. Dutton v. Evans, 400 U.S. 74, 86

Scalifornia v. Green, 399 U.S. 149, 155

(1970). Dutton v. Evans, 400 U.S. 74, 86 (1970).

75 J. Wigmore, Evidence, $1395 (Chadbourn

rev. 1974) (hereinafter cited as Wigmore). See

McCormick, Evidence § 252 (2d ed. 1972) (herein-

after cited as McCormick).

-44-

(1970)°, California v. Green, supra at 155.

"The right co confrontation is basically a

trial right." Barber v. Page, 390 U.S. 719, 725

(1968). It is designed to make prosecution

witnesses available for full cross-examination by

the defendant and to ensure that the testimony

of a witness is given under oath before the jury

who will have an opportunity to observe the

demeanor of the witness as he testifies. The

right entitles the defendant to confront adverse

witnesses personally. "The primary object of

the constitutional provision in question was to

prevent depositions or ex parte affidavits, such

as were sometimes admitted in civil cases, being

used against the prisoner in lieu of a personal

examination and cross-examination of the witness

in which the accused has an opportunity, not only

of testing the recollection and sifting the conscience

of the witness, but of compelling him to stand

face to face with the jury in order that they may

look at him, and judge by his demeanor upon the stand

and the manner in which he gives his testimony

whether he is worthy of belief." Mattox v. United

States, 156 U.S. 237 242-243 (1895).

When a prosecution witness becomes unavail-

able after testifying at a pre-trial hearing or at

Sean Wigmore argues, however, that con-

frontation is an element of the hearsay rule and

hence is merely another name for the opportunity

of cross-examination. 5 Wigmore §§1366, 1397.

-45-

the defendant's first trial, and a second trial

becomes necessary, the Supreme Court has con-

cluded that the substance of the confrontation

right was afforded the defendant by the advantage

he "once had of seeing the witness face to face,

and of subjecting him to the ordeal of a cross-

examination."' Mattox v. United States, supra

at 244. Accord, Commonwealth v. Gallo, 275

Mass. at 328-334.

At the out set of the defendant's trial on

the conflict of interest indictments, the Common-

wealth presented a motion to the trial judge seek-

ing an order compelling co-indictee Curley to

testify on the theory that he had waived his right

to assert the privilege against self-incrimination

to the extent that he testified before the grand

jury and at the prior civil trial on matters

related to the criminal charges. Alternatively,

the Commonwealth sought permission to introduce

Curley's stenographically recorded testimony

given during the earlier civil trial. The judge

denied the Commonwealth's motion to compel

Curley to testify but thereafter allowed the

Commonwealth to introduce portions of the

testimony given by Curley at the civil trial. The

judge never articulated his reasons for permitting

Curley's Fifth Amendment claim to stand. The

majority opinion finds that a "plausible" claim of

the privilege is sufficient. If "plausible" means

valid“, I agree. It seems to me, however, that

a decision resulting in a loss of a constitutionally

protected interest should be more specific as to

the particular circumstances which warrant the

kind of procedure here used.

-46-

The unavailability of a witness during a

criminal trial is a condition precedent to the

introduction of former testimony in conformance

with the confrontation clause and the exception

to the hearsay rule. Plainly the unavailability of

a witness is established when the individual's

physical presence is impossible to procure. How-

ever, the salient consideration is not whether

the individual's physical presence is obtainable,

but whether the testimony of that person is

available. Mason v. United States, 408 F. 2d 903,

906 (10th Cir. 1969), cert. denied, 400 U.S. 993

(1971). Accord, Poe v. Turner, 490 F. 2d 329,

332 (10th Cir. 1974); United States v. Allen, 409

F.2d 611, 613 (10th Cir. 1969); 4 J. Weinstein &

M. Berger, Evidence par. 804 (a)[01] (1976)

(Weinstein & Berger); McCormick §253.

I agree that, when a prospective witness

validly declines to testify based on a proper

assertion of the Fifth Are ndment guaranty

against self-incrimination or steadfastly refuses

to testify despite a court order to do so, the

testimony of that witness is rendered unavailable.

United States v. Elmore, 423 F.2d 775, 778 (4th

Cir.), cert. denidd, 400 U.S. 825 (1970). United

States v. Allen, supra at 613. Mason v. United

States, supra at 906. Fed. R. Evid. 804(a)(1). See

Cal. Evid. Code 5240 (a)(1) (West); Weinstein &

Berger, par. 804(a)[01]; McCormick §253; Annot.,

45 A. L. R. 2d 1354 (1956).

The right to confront a witness before the

jury who hear the case should not be lost in the

-47-

absence of a clear showing of need. Liacos, The

Right of Confrontation, 33 Am. Trial Law. J.

243 (1970). Liacos, The Right of Confrontation

and the Hearsay Rule: Another Look, 34 Am.

Trial Law. J. 153 (1972). I note in this regard

that the record fails to reveal any findings by

the judge on the issue of whether or not a witness's

prior testimony constitutes a waiver of the

privilege. In these circumstances, the record fails

to demonstrate satisfaction of even the threshold

justification of a use of the Curley transcript in

lieu of his live testimony.

Additionally, the unavailability of Curley's

live testimony at the defendant's trial on the con-

flict of interest indictments is only an initial factor

in a determination whether the former testimony

was properly placed before the jury. Because the

use of Curley's former testimony prevented the

defendant from physically confronting Curley

during the criminal proceedings, the circumstances

in which the former testimony was given must be

examined to ascertain whether the testimony was

given in compliance with the requisites of the

confrontation clause. Of primary concern is whether

Curley's testimony in the civil trial bore sufficient

"indicia of reliability," Mancusi v. Stubbs, 408 U.S.

at 213; Dutton v. Evans, 400 U.S. at 89, to afford

a satisfactory basis for the jury in the defendant's

subsequent criminal trial to evaluate the trust-

worthiness of the prior testimony.

Opportunity and motive for cross-examination

are the most crucial factors in any evaluation

-48-

of the reliability of former testimony. The prior

judicial proceeding must furnish the defendant with

an opportunity to confront the witness directly and

to cross-examine him while he is under oath. More

importantly, the considerations which guide the

conduct of the cross-examination or the decision

to waive cross-examination during the prior trial

must be functionally equivalent to the considera-

tions which prevail at the later trial where the

former testimony is introduced. The defendant

must have been a party to the earlier action. The

confrontation clause permits nothing less. The

issue on which the testimony was introduced in

the first proceeding as well as the purpose for

which the testimony was offered must be substan-

tially similar to the issue and purpose for which

the same testimony is offered at the subsequent

criminal trial. Se McCormick §257. The issue and

the purpose for offering the testimony need not be

identical in both proceedings, but they must be

sufficiently similar to ensure that the defendant had

the same motive for cross-examining the witness

at the earlier proceeding as he would have had at

the later criminal trial, if the witness had appeared

to testify. See Poe v. Turner, supra; Peterson

v. United States, 344 F.2d 419, 424 (5th Cir. 1965);

United States v. Franklin, 235 F.Supp. 338, 341

(D.D.C. 1964); Fed. R. Evid. 804(b)(1); McCormick

§257, 5 Wigmore 51387; Weinstein & Berger, par.

804(b)(1)[04]. Cf. United States v. Wingate, 520

F. 2d 309, 316 (2d Cir. 1975); First Nat'l Bank v.

National Airlines, Inc., 22 F. R. D. 46, 48 (S. D. N. Y.

1958).

-49-

The defendant in the present case was a party

plaintiff in the prior civil proceeding. That trial

was the result of an action initiated against Curley

and Lynch by him to recover his share of the profits

realized by the real estate investment venture.

Among the defenses relied on by Curley and Lynch

was the assertion that the agreement to include

the defendant in the real estate venture was illegal

because it violated G. L. c. 268A. Curley was

called by the defendant to testify about the real

estate venture and the oral agreement which made

the defendant a co-investor in the project. Having

called the opposing party while putting in his own

case, the defendant was entitled to cross-examine

him. G. L. c. 233, §22. However, the issue on

which Curley's testimony was introduced was whether

an agreement to include the defendant in the real

estate venture had been reached by the parties.

The defendant's motive for examining Curley was

to demonstrate that an agreement had been

concluded which made the defendant a participant

in the project and entitled him to receive an

equal share of the profit realized by the venture.

Conversely, the testimony given by Curley in the

civil trial was introduced by the Commonwealth

at the defendant's criminal trial to prove that

the defendant had illegally used his public office

to foster private gain. Had Curley testified in

person at the defendant's trial on the indictments,

the defendant's motive for cross-examining him

would certainly have been altered. He would have

undoubtedly probed for inaccuracies and inconsistencies

in Curley's testimony and he would have had a

stronger motive to impeach the witness.

®

-50-

Equally important in considering whether the

defendant's motive for cross-examining the witness

was the same in both proceedings is the obvious

shift in the underlying liability associated with

the cases. In the civil action the defendant sought

a financial recovery on the basis of an alleged breach

of contract, but inthe criminal prosecution, not

only his liberty, but his personal and professional

reputation in the community, was at stake. The

crucial question whether private services were

promised or rendered to the private project by

the defendant was not in issue at the civil trial.

Although one of the defenses asserted in response

to the defendant's contract claim was the alleged

illegality of the agreement the foundational

theory and liability of the two cases were not

parrallel.

In the circumstances of this case, Curley's

testimony at the civil trial failed to contain

sufficient indicia of reliability to justify its

placement before the jury in the defendant's trial

on the conflict of interest indictments. The

defendant is therefore entitled to a new trial at

which his right to confront Curley will not be

abridged by the introduction of testimony given by

that witness in the earlier civil proceeding.

ABRAMS, J. (dissenting). I respectfully dis-

sent from the failure of the majority to grant a

new trial in this case. The well established law in

this Commonwealth is that the judge has a duty

"to declare what the law is, with its exceptions

and qualifications, to explain it, and to state the

reasons and grounds of it," in such a way that the

\

231

law will be clearly intelligible to the minds of

men of good judgment and common experience, but

without legal knowledge and skill. Commonwealth

v. Porter, 10 Met. 263, 283 (1846) (Shaw, C. J.)

Although the trial judge read the statute to

the jury, in his conscientious attempt to

distinguish § 17(a) from §2(b) and §3(b), he appears

to have adopted the position that only the receipt

of money need be shown to justify a conviction under

§17(a). Such a view is nct in accord with the

interpretation this court today places on §17(a). 1

Nevertheless, the majority find that the jury

instructions were adequate and that the jury were

warranted in returning a guilty verdict. While I

agree with the court's construction of §17(a), and

while, in my view, ample evidence exists on which

a jury could convict Canon, I disagree with the

Taithough the defendant did not take a specific

exception to the instructions, after the charge he

did except to the denial of his request for instruc-

tions. The judge's construction of the statute was

in issue throughout the trial, and the defendant's

exception thereto is, in my view, sufficient to

preserve the issue of the adequacy of the instruc-

tions for review m appeal. See Commonwealth v.

Crosscup, 369 Mass. , (1975) (Mass. Adv.

Sh. [1975] 3482, 3499); M. Dematteo Constr. Co.

v. Commonwealth, 338 Mass. 568, 587-589 (1959).

@

-52-

majority's disposition of this case. The majority

assume without discussion that a jury would agree

with them and would convict the defendant under

today's interpretation of §17(a). Even assuming

this to be the fact, I think that basic fairness and

a proper regard for the jury system require that

we grant the defendant a new trial.

In the past we have held it fundamental that

jurors be guided by clear and correct instructions

on the applicable legal principles. Commonwealth

v. Corcione, 364 Mass. 611, 618 (1974).

Commonwealth v. Kelley, 359 Mass. 77, 92 (1971).

Commonwealth v. Rollins, 354, Mass. 630, 638

(1968). Commonwealth v. Carson, 349 Mass. 430,

435 (1965). Commonwealth v. Porter, supra at 283.

See Commonwealth v. Benders, 361 Mass. 704 (1972).

Instructions which are prejudicially erroneous or

misleading on a crucial point of law have always

required a new trial. Commonwealth v. Corcione,

supra at 616-618. Commonwealth v. Benders,

supra at 707-708. United Statesv. Brewster, 506

F.2d 62, 82-83 (D.C. Cir. 1974). Cf. Common-

weal th v. Albert, 310 Mass. 811, 812 (1942). See

Commonwealth v. Freeman, 352 Mass. 556 (1967)

This result follows irrespective of the fact that

ample evidence might exist to support the verdict

on a correct theory of law. Jurors, not judges,

decide the issue of guilt or innocence. See

Commonwealth v. Corcione, supra at 617; Common-

wealth v. Benders, supra at 707-708. C£. Common-

wealth v. Albert, supra at 820-821; Adamaitis v.

Metropolitan Life Ins. Co., 295 Mass. 215, 221

(1936).

33

There is no reason to depart from basic

principles in this case. Indeed, fairness mandates

otherwise. Canon should not be the only exception

to a general rule. The trial, the arguments, and

the instructions all suggested to the jury that only

the receipt of money need be shown to justify a

conviction under §17(a). The jurors were not given

any specific guidance on the essential element of

"services rendered or to be rendered."

Moreover, under our legal system, the

responsibility for stating and explaining the law is

allocated to the judge, and the duty of deciding

questions of fact and of applying the law to the

facts is given to the jury. Commonwealth v.

Abbott, 13 Met. 120, 124 (1847). Sparf & Hansen

v. United States, 156 U.S. 51, 102, 106 (1895).

Commonwealth v. Dickerson Mass. Adv. Sh. (1977)

1344, 1362, 1364-1366. (Quirico, J., concurring).

This division of functions between the judge and

the jury has long been recognized as an essential

element in providing justice: "In this separation of

the functions of court and jury is found the chief value,

as well as safety, of the jury system. Those func-

tions cannot be confounded or disregarded without

endangering the stability of public justice, as well

as the security of private and personal rights.

Sparf & Hansen v. United States, supra at 106.

See Commonwealth v. Bellino, 320 Mass. 635, 639,

cert. denied, 330 U.S. 832 (1947). The failure to

grant Canon a new trial blurs the distinction

between these functions.

-54-

Finally, the jury system provides the most

important means by which laymen can participate

in and understand the legal system. "It makes

them feel that they owe duties to society, and that

they have a share in its government .... The jury

system has for some hundreds of years been con-

stantly bringing the rules of law to the touchstone

of contemporary common sense" (emphasis supplied).

1W. Holdsworth, A History of English Law 348-349

(3d ed. 1922).

I dissent from the majority's disposition of

this case since it appears to me to be but the first

step in diminishing the extent of citizen participa-

tion in the administration of justice and the many

benefits which flow from such participation.

For these reasons, where, as here, there is a

material disparity between our interpretation of a

statute and that given the statute at trial, a new

trial is mandated. "[W]e have no authority to take.

upon ourselves the duties of a tribunal of fact, and

to determine what verdicts should have been rendered

by the jury .... Convenient and helpful as it might be

to the litigants to have these cases finally decided

without further litigation, we must decline to act

extrajudicially in a matter that comes before us

sitting as a court." Electric Welding Co. v. Prince,

200 Mass. 386, 392 (1909).

-55-

October 25, 1977

Honorable Edward F. Hennessy

Supreme Judicial Court

New Court House

Pemberton Square

Boston, Massachusetts 02108

Re: Commonwealth v. Canon

My Dear Chief Justice Hennessy:

In accordance with the provisions of Rule 27

of the Massachusetts Rules of Appellate Procedure,

Isubmit herewith defendant-appellant's Petition

For Rehearing in the subject cause.

Considering that the Court deemed it desirable

to invoke the seldom utilized provisions of Appellate

Rule 23(a), that the Court's opinion provoked two

strong dissents, and the lengthy perioc the case

was under consideration before the rendition of the

decision, it might appear presumptuous (or even

silly) for undersigned counsel to think that there

could be anything to be said now that the Court has

not thoroughly considered. The Court's decision

itself, however, injects new matter into the case

because of its completely unexpected and unique

interpretation of G. L. c. 268A, §17, which has

never been before addressed by counsel. The

defendant herewith presents two reasons which

-56-

require at least briefing by the parties and recon-

sideration by the Court: 1. the Court's own

interpretation of §17 demonstrates that the

defendant committed no crime, and 2. that

interpretation raises constitutional questions not

addressed by the Court.

The Court holds that sufficient evidence was

adduced of a §17 crime in that the "compensation"

Canon received was "an opportunity to participate

in the realty investment" "in return for his promise

of general engineering advice 'to be rendered' by

him", and that the "particular matter" in which

his municipal employer had "a direct and substantial

interest" was "the granting of the permit" to build

an apartment complex on the property. Even if there

were sufficient evidence to prove the elements

derived by the Court (and as to Canon's proffered

"promise", there was not [see below]), the funda-

mental error in such a holding is that it overlooks

the very language of §17 itself. That statute in

its relevant part provides: "No municipal employee

shall ... receive or requést compensation ... in

relation to any particular matter in which the same

city ... has a direct and substantial interest."

The statute does not forbid any "compensation"

from any non-municipal source, only when such

"compensation" is "in relation to" something in

which the city has a "direct and substantial interest."

Canon could have with impunity sold life insurance

to the Mayor, for instance. Here the city did not

have the required direct interest in Canon's

opportunity to invest, conferred back in January,

and that "compensation" had no relationship to the

.

permit granted in April, and unless there is such

a direct relationship between the "compensation"

and the "interest" there is no crime. If Canon's

"general engineering advice" (the consideration

for the "compensation") had anything to do with

the permit, such a relationship might be argued to

exist, but it is uncontroverted from the evidence

that engineering considerations did not enter into

the permit grant (The City Council considered only

the tax impact, the need for any developer to share

the cost of providing services, etc.), and also

that Canon had absolutely no connection, even

indirect, with the grant of the permit.

An investment opportunity assumes a profit,

here a sale to a deve loper, but that sale occurred

in July, months after the city had specified its

only "interest" by conditioning any buyer's develop-

ment upon his paying part of the cost of supplying

services. The Court's opinion finds Canon's

"compensation" in his "opportunity" even "if the

investment produced no profit", but even if the

"compensation" is therefore frozen in time, as of

its grant in January, and the subsequent sale and

return on the investment therefore immaterial,

the Court's view would still require the directed

verdict. The investment opportunity clearly

vested in January, 1968, three months outside the

six year statute of limitations (the indictment was

returned in April, 1974). Both the quid (Canon's

"promise") and the quo (his "opportunity" to invest)

were given in January, 1968. The Court rules the

statute of limitations satisfied because Canon

received part of his profit money in July, but that

-58-

is not the "compensation" relied on by the Court to

satisfy §17. His investment "opportunity", his

"compensation", is barred by the statute of

limitations, and his July profit payment as a

result of the sale is just as obviously not a

"particular matter" in which the city had a

"direct and substantial interst." Either view does

not make out an indictable crime. The July pay-

ment is useless for another reason: it is not even

"compensation" under §1 as it was not for "services

rendered or to be rendered." Canon clearly had

rendered no services (which is why the Court had

to construct his "promise" to find any criminality),

and there were no services to render after the July

sale.

No jury was warranted to find on this evidence

the required relationship between the elements of

the crime as the Court itself interprets them, and

without that relationship the fundamental criminal

nexus is absent. This is no exercise in semantics.

The defendant has accepted the Court's two newly

defined criminal elements, "compensation" and

"interest", and demonstrated that the relationship

between them mandated by the statute quite

apparently does not exist.

For the purpose of this argument the

defendant has so far accepted the factual linch

pin to the Court's theary of Canon's "consideration":

his "promise of general engineering advice 'to be

rendered' by him." The opinion alludes to that

"promise" as if it were a "given" from the evidence,

but in fact one answer by Canon during his civil

-59-

trial testimony (in context quite ambiguous) is the

one and only jot of evidence supporting such a

"promise". Overlooked is the truth that all the

other evidence is overwhelmingly to the contrary--

so much so, that the Commonwealth itself accepted

as an established fact that Canon was to contribute

only money to the venture, and so argued to the

jury (Tr. 805-808). The evidence which the Court

unearthed of its all-important "promise" is so

slim it cannot be made the basis for the contention

that the jury would have been warranted to find there

was such a promise even if that question had

been presented to them, which, of course, it was

not.

The second reason why there should be a

rehearing herein, so that issues apparent for the

first time may at least be briefed, is that the

Court's opinion raises serious constitutional errors

which have not been addressed by either counsel or

the Court. Both dissenters take issue with the

Court's holding that even though this jury was

instructed only that the defendant's receipt of

money itself made out the crime under §17, had

they been asked to weigh the evidence under the

Court's unique interpretation of the statute they

would have been warranted to find him guilty.

Neither dissent discusses this absolutely unprece-

dented holding in a constitutional context, but the

defendant most strongly submits that such a new

rule of law represents a most fundamental denial

of due process of law, and abridges his rights under

the Fourteenth Amendment. It abrogates entirely

the defendant's right to trial by jury. The Court

-60-

does not discuss its holding or cite any authority

that such a disposition is within an appellate court's

power. The Court s opinion does not seem even

to realize the essential constitutional wrong that it

has perpetrated, even though fundamentally

delineated in the dissents. The question should at

least be briefed and reconsidered by the Court.

The Court's holding thrusts deeply into the

heart "of the very essence of a scheme of ordered

liberty." Palko v. Connecticut, 302 U.S. 319, 325

(1937). How can an appellate court promulgate a

wholly new interpretation of a criminal statute--

one not even arguably presented to or passed upon

by the jury--and hold that if the jury had been so

instructed it would have agreed with the appellate

court's finding’ Suc Such a holding is completely un-

precedented. This jury was not asked if there was

evidence beyond a reasonable doubt of any "promise"

by Canon, or any investment "opportunity" awarded

within the definition of compensation“, or whether

the city had "a direct and substantial interest" in

the permit award, or (last, but by no means least)

if any "compensation" was "in relation to" the permit.

Fairly inferable from the not guilty verdicts on the

three other indictments, is the fact that this jury

in fact found no "promise" or the verdicts are

inconsistent. This jury found only one thing under

the instructions given on §17--and only this jury

could convict: since Canon admitted he received the

$5,000 profit, and that constitutes the crime, he is

guilty. That interpretation of §17 was wrong, as

the defendant argued throughout, and the Court now

agrees, but the Court cannot constitutionally now

-61-

empanel itself as a super jury and say that under

the correct interpretation of the statute, now,

quite uniquely, devised, Canon is guilty. No appellate

court can do that--it simply cannot under our

constitution--but by its opinion this Court has.

The Court's interpretation of §17 also

renders the statute as applied unconstitutionally

"void for vagueness." What Massachusetts citizen

"of ordinary intelligence" in 1968 would have had

"fair notice that his contemplated conduct is

forbidden by the statute", and the constitution

"insist[s] that the law give fair notice of the

offending conduct", as the United States Supreme

Court put it in its unanimous (and lovely) opinion

in Papachristou v. City of Jacksonville, 405 U.S.

156, 162 (1972)? All Massachusetts commentators

and the Attorney General in two opinions, and all

Federal authorities interpreting a correlative

statute, held that some actual "services rendered",

some participation in "the particular matter", was

required of the municipal employee. In this case

neither intelligent and experienced counsel nor the

trial judge even imagined that a "promise" was

enough, as this Court now, uniquely, interprets §17

to say. Even the Appeals Court last year thought

otherwise. See, Commonwealth v. Dutney, Mass.

App. Ct. Adv. Sh. (1976) 682, 689. Until now, proof

of such an agreement (Canon's promise“) would

have constituted conspiracy to commit a §17 crime--

whatever §17 is--not a separate substantive crime

itself. Why would the legislature have intended

a redundancy, sub silentio, and contrary to all

authority, when such a "promise" was already a

-62-

crime? Would not the citizen "of ordinary intelligence"

have reasonably read §17's "services" "to be rendered"

to cover situations where the employee's "request"

for or receipt of "compensation" simply occurred

prior to his actual rendition of the services--that

criminality is not avoided by being paid first? The

Court's §17 was at best "void for vagueness" until

now. And what of scienter? The Court's opinion

does not mention this element of the crime in

conjunction with its theory, yet seems to recognize

that intent is an element, as all the Federal cases

hold. This jury was instructed that §17 was malum

prohibitum--the receipt of money alone was enough.

Even constituted as a super jury, the Court does not

allude to what evidence warrants finding the necessary

intent.

Counsel is keenly aware that the members of

the @urt would not be human if they did not have a

rather automatic disinclination to rehear this case,

particularly. It has already obviously sparked deep

controversy on the Court. The very natural reaction

of the majority will no doubt be: "We've finally

disposed of this thing, and that was hard enough,

and we're just not going to think about it again.

The defendant pleads that those comfortable and

quite natural reactions be rejected, and that at

least two more Justices realize that this "hard case"

may be making "bad law", and permit counsel to at

least brief these issues and reconsider the opinion

herein.

Respectfully yours,

Daniel F. Featherston, |r.

DFF: mtr

CC: District Attorney John J. Droney

1

October 28, 1977

Daniel F. Featherston, Jr., Esq.

7 Water Street

Boston, MA 02109

Re: Commonwealth v. Anthony J. Canon

SJC 605

Mass. Adv. Sh. 2134 (1977)

Dear Mr. Featherston:

Your request for a rehearing in the

above- ent itled case has been considered

by the court and is denied.

Very truly yours,

Frederick J. Quinlan

Clerk

FJQ: c

cc - Mr. John J. Droney

District Attorney

Middlesex Superior Court House

East Cambridge, MA 02141

-64-

APPENDIX B

Massachusetts General Laws, Chapter

268A, § 17 (a): "No municipal employee shall,

otherwise than as provided by law for the

proper discharge of official duties, directly

or indirectly receive or request compensation

from anyone . . in relation to any par-

ticular matter in which the same city or

town is a party or has a direct and sub-

stantial interest.

Massachusetts General Laws, Chapter

268A, l. (Definitions):

" . . (a) 'compensation', any money,

thing of value or economic benefit

conferred on or received by any per-

son in return for services rendered

or to be rendered by himself or

another... "

XR X * *

" (k) part icular matter, any judicial

or other proceeding, application, sub-

mission, request for a ruling or

other determination, contract,

claim, controversy, charge, accu-

sation, arrest, decision, deter-

mination, finding, but excluding

enactment of general legislation by

the general court ... "