# Petition — Bucuvalas v. Massachusetts

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 439 U.S. 827

## Text

Supreme Court, U.

FILE D
MAY on 1979

In the
Supreme Court of the United States.

Ocrosen Team, 1977.

* 77-1678

GEORGE BUCUVALAS,
PETITIONER,

v.

COMMONWEALTH OF MASSACHUSETTS,
RESPONDENT.

Petition for a Writ of Certiorari to the Appeals Court
for the Commonwealth of Massachusetts.

Morns M. Go.pincs,
Kenneru H. TATARiAn,
Manoney, Hawkes & GoLprncs,
500 Boylston Street,
Boston, Massachusetts 02116.
(617) 261-2300

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS.

Opinion below
Jurisdiction
Questions presented
Constitutional provision involved
Statutes involved
Statement of the case
Reasons for granting the writ
I.

Table of Contents.

a + £+ O&O Ww bw

The enlargement of the scope of the criminal
statute under which the petitioner was charged

and the application of that enlarged scope to
the petitioner violated the Due Process Clause
of the Fourteenth Amendment to the United
States Constitution in that it constituted a
retroactive and unforeseeable application of
the criminal law 7

A. The unforeseeable and retroactive en-
largement of the meaning of the term
“sexual intercourse” and its application to
the facts of this case deprived the petitioner
of due process of law 9
1. The meaning of the term “sexual inter-

course” as commonly used and under-
stood and as judicially construed in Mas-

sachusetts case law 9
2. The term “sexual intercourse” was ju-

dicially enlarged and retroactively applied

in petitioner's case in violation of the Due

Process Clause 13

B. General Laws c. 272, § 6, is unconstitu-
tional as applied to a private and consensual
act of fellatio between adults 15

TABLE OF CONTENTS.

1. Chapter 272, § 6, was unforeseeably
and retroactively applied to a private and
consensual act of fellatio between adults
— an act which was not criminal when
engaged in

2. General Laws c. 272, § 6, is unconstitu-
tionally vague as applied in that it fails to
provide adequate notice that a private
consensual act of fellatio is unlawful

. Petitioner was deprived of due process of
law because his conviction was based upon no
or insufficient facts to support findings that
the female had a purpose of unlawfully having
sexual intercourse or that petitioner had
knowledge of that purpose and there was no
corroboration as required by Massachusetts
General Laws c. 272, § 11, and because the
affirmance of his conviction by the Appeals
Court was based upon facts not in the record
and failed to account for facts in the record
bearing on material issues
A. There was no evidence that Connie Peria
resorted to or was in or upon the premises
for the purpose of unlawfully having sexual
intercourse
B. There was no or insufficient evidence that
petitioner had knowledge of Connie Peria’s
purpose
C. There was no corroboration as required
by General Laws c. 272, § 11

Ill. The instructions to the jury deprived pe-
titioner of due process of law

16

18

21

21

TABLE OF CONTENTS.

A. The trial justice failed to instruct as re-
quested that the term “sexual intercourse”
refers to the natural act of coition or copula-
tion and does not refer to types of sexual
acts other than that and erred by instructing
that the term “sexual intercourse” includes
unnatural acts

B. The trial justice refused to instruct the
jury as requested by the petitioner or by
any other instruction that they were re-
quired to determine the issue whether the
act which occurred was unlawful and that

act was committed in private

C. The trial justice failed to instruct as re-
quested or by any other instruction that the
jury must find that petitioner knew the fe-

on the

of
her unlawful purpose in being on the
premises
Conclusion
Appendix A: Portions of Record in Trial Court Show-

Appendix C: Judgment of Appeals Court

la

19a

iv TABLE OF AUTHORITIES CITED.
Table of Authorities Cited.

Cases.

Balthazar v. Superior Court, 428 F. Supp. 425 (D.
Mass. 1977), aff'd, No. 77-1159 (Ist Cir. April 4,

1978) 15n, 20
Bouie v. City of Columbia, 378 U.S. 347 (1964) 7, 8,
15, 18, 21

Commonwealth v. Altenhaus, 317 Mass. 270 (1944) 24

Commonwealth v. Balthazar, 366 Mass. 298 (1974) 9, 11,
16, 17n, 18, 19, 29

Commonwealth v. Bucaulis, _... Mass. App. Ct.
_., 373 N.E. 2d 221 (1978), Mass. App. Ct.
Adv. Sh. (1978) 124, further appellate review

denied, __. Mass. _.. (1978), Mass. Adv. Sh.

(1978) 826 2, 14, 20, 23, 27
Commonwealth v. Cook, 53 Mass. (12 Met.) 93

(1846) 10

Commonwealth v. DeBrosky, 363 Mass. 718 (1973) 26, 27
Commonwealth v. Delano, 197 Mass. 166 (1908) 11, 28
Commonwealth v. Deschamps, 1 Mass. App. Ct. 1

(1972) ll
Commonwealth v. Gallant, _... Mass. __. (1977),
Mass. Adv. Sh. (1977) 2254 12, l4n, 15n

Commonwealth v. Gonzales, _.. Mass. App. Ct.
___. (1977), Mass. App. Ct. Adv. Sh. (1977) 1211 12

Commonwealth v. Hussey, 157 Mass. 415 (1892) 10
Commonwealth v. King, _... Mass. —._ (1977),
Mass. Adv. Sh. (1977) 2636 20

TABLE OF AUTHORITIES CITED. v
Commonwealth v. Lynes, 142 Mass. 577 (1886) 10
Commonwealth v. McCan, 277 Mass. 199 (1931) 10
Commonwealth v. Reilly, ___ Mass. App. Ct. ___

(1977), Mass. App. Ct. Adv. Sh. (1977) 736 19, 20
Commonwealth v. Scagliotti, __. Mass. ____ (1977),
Mass. Adv. Sh. (1977) 2323 16, 17, 19,
20, 23, 25, 29
Commonwealth v. Squires, 97 Mass. 59 (1867) 10, 11
Commonwealth v. Williams, 353 Mass. 233 (1967) 26
Douglas v. Buder, 412 U.S. 430 (1973) 8, 15, 18, 21
Ford v. Flaherty, 364 Mass. 382 (1973) 2n
Mullany v. Wilbur, 421 U.S. 684 (1975) 20n, 29
Rose v. Locke, 423 U.S. 48 (1975) 8, 15
Winship, In re, 397 U.S. 358 (1970) 29

Yoder v. United States, 80 F. 2d 665 (10th Cir. 1935) 22

CONSTITUTIONAL AND STATUTORY PROVISIONS.

United States Constitution, Fourteenth Amendment,

Due Process Clause 3, 7, 8, 13, 17, 25, 26 et seq.
28 U.S.C. § 1257(3) 2
Mass. G.L. c. 139, §§ 4, 5, 20 20
Mass. G.L. c, 265, § 22 11, 12
Mass. G.L. c, 272

§6 4, 8, 9, 12n, 13, 14, 15 et seq.
§ 11 4, 6, 21, 25, 26, 27
§ 35 11, 18
Mass. Stat. 1886, c. 329, § 5 13n

Mass. Stat. 1974, c. 474, § 1 1]

vi TABLE OF AUTHORITIES CITED.

MISCELLANEOUS.
American Heritage Dictionary, The (1973) 9, 10
Black’s Law Dictionary (4th ed. 1968) 10
Webster's Third New International Dictionary
(1964) 10, 16

In the
Supreme Court of the United States.

Ocroser Term, 1977.

No.

GEORGE BUCUVALAS,
PETITIONER,

v.

COMMONWEALTH OF MASSACHUSETTS,
RESPONDENT.

Petition for a Writ of Certiorari to the Appeals Court
for the Commonwealth of Massachusetts.

The petitioner, George M. Bucuvalas, prays that a writ of
certiorari issue to review the judgment of the Appeals Court
of the Commonwealth of Massachusetts entered February 24,
1978.

2
Opinion Below.

The opinion of the Appeals Court of the Commonwealth
of Massachusetts is reported as Commonwealth v. Bucaulis,'
__ Mass. App. Ct. ___., 373 N.E. 2d 221 (1978) (Mass.
App. Ct. Adv. Sh. [1978] 124), and is reprinted as Appendix
B to this petition at pp. 9a-18a. Further appellate review
was denied by the Supreme Judicial Court of the Common-
wealth of Massachusetts on March 28, 1978.* _._ Mass.
_____ (1978) (Mass. Adv. Sh. [1978] 826).

Jurisdiction.

The judgment of the Appeals Court of the Commonwealth
of Massachusetts was entered on February 24, 1978, and is
reprinted as Appendix C to this petition at p. 19a. The Su-
preme Judicial Court of the Commonwealth denied further
appellate review without opinion on March 24, 1978.’ The
jurisdiction of this Court is invoked under 28 U.S.C.
§ 1257(3).

Questions Presented.

1. Whether the enlargment of the scope of the criminal
statute under which the petitioner was charged and the

'The Appeals Court of Massachusetts adopted the spelling of peti-
tioner’s name as it appeared in the criminal complaint. See App. B at

Ya n. 1.

*Further appellate review by the Supreme Judicial Court of a deci-
sion of the Appeals Court is discretionary. Denial of further appellate
review is not an affirmation of the decision or reasoning of the Appeals
Court. Ford v. Flaherty, 364 Mass. 382, 387 (1973).

*See n. 2, supra.

3

application of that enlarged scope to the petitioner violated
the Due Process Clause of the Fourteenth Amendment to
the United States Constitution in that it constituted a retro-
active and unforeseeable application of the criminal law?
2. Whether the petitioner was deprived of due process
of law under the Due Process Clause of the Fourteenth
Amendment to the United States Constitution because his
conviction was based upon no or insufficient evidence of
material elements of the offense and of corroboration as re-
quired by state law and because the affirmance of his con-
viction was based upon facts not in the record and failed to
account for facts in the record bearing on material issues?
3. Whether the trial justice’s instructions to the jury and
failure to instruct as requested deprived the petitioner of
due process of law under the Due Process Clause of the
Fourteenth Amendment to the United States Constitution by
failing to require the prosecution to prove beyond a reason-
able doubt every fact necessary to establish all material ele-
ments of the offense with which petitioner was charged?

Constitutiona! Provision Involved.
Constitution of the United States, Amendment XIV:

[N Jor shall any State deprive any person of life, liberty,
or property, without due process of law .. ..

4
Statutes Involved.

Massachusetts General Laws c. 272, § 6 (one controlling a
place, inducing or suffering female to resort there for sexual
intercourse):

Whoever, being the owner of a place or having or
assisting in the management or control thereof induces
or knowingly suffers a female to resort to or be in or
upon such place, for the purpose of unlawfully having
sexual intercourse, shall be punished as provided in sec-
tion three.

Massachusetts General Laws c. 272, § 11 (corroboration
of one witness; limitations):

A person shall not be convicted under sections two to
six, inclusive, upon the evidence of one witness only,
unless his testimony is corroborated in a material partic-
ular, and prosecution for a violation of any of said
sections shall not be commenced more than one year
after the commission of the crime.

Statement of the Case.

Petitioner was the President of United Food Corporation
and was the manager of a night club and lounge owned
and operated by that corporation in Boston, Massachusetts.
On October 14, 1976, a customer of the lounge, Edward
Wolfe, engaged in a consensual act of fellatio on the prem-

5

ises with a female, Connie Peria, who was employed by the
corporation as a dancer and entertainer at the lounge.

A criminal complaint issued against petitioner charging
him with “knowingly suffering a female to resort to or be in
or upon [that place] for the purpose of unlawfully having
sexual intercourse.” (See Statutes Involved.) Petitioner
moved to dismiss the complaint, raising as issues whether
the statute was unconstitutionally vague, whether it did
apply or could constitutionally be applied in this case to
consensual acts in private, and whether it did apply or
could constitutionally be applied in this case to an act or a
purpose to engage in an act other than sexual intercourse.
(R. 4-5; App. A at pp. la-2a).‘ Defendant preserved his
exception to the denial of the motion (T:. 26)* and pursued
the issues on appeal (R. 19-31; App. A at pp. 4a-8a).

At trial, evidence was introduced to show that the lounge
consists of three rooms, in each of which there is a stage
upon which the dancers and entertainers perform. Around
each stage is a bar and barstools and at the perimeter of
each room are booths. The entertainment at the lounge
consists of dancing and music. When the dancers and
entertainers are not dancing, they mingle with the customers
and attempt to get them to purchase drinks and bottles of
champagne. Mr. Wolfe entered the lounge, sat at the
bar in the main lounge, ordered a drink and engaged in
conversation with the barmaid. Peria came over and en-
gaged in conversation with him,’ after which he purchased

‘References to (R. ) are to the printed summary of the record which
contains the documents filed in the trial court.

* References to (Tr. _) are to the transcript of the testimony and other
proceedings at trial.

*The conversation was not admitted as against petitioner (Tr. 175-177)
although it was admitted against Connie Peria, who was a codefendant
and was convicted of prostitution. In Argument II, infra, petitioner
challenges the Appeals Court's reliance on the excluded conversation to
sustain petitioner's conviction.

a bottle of champagne and they went to a second lounge
to the side of the main lounge.

The lounge to which Wolfe and Peria went was used only
in the evening. At the time of the incident, it was closed to
the public, had a door, was otherwise unoccupied and was
pitch black such that one could not see into the room with
the naked eye and could not see in the booth unless one
were in the booth itself. Both Peria and Wolfe were in the
lounge for approximately 20 minutes, during which time
they had conversation and drank champagne. Wolfe then
talked Peria into performing an act of fellatio upon him.

Mr. Wolfe did not see petitioner talk to the barmaid or to
Peria and did not see him in the main lounge or the side
mee teagan eter centr thy ony He did not see
etitioner on the premises until after he and Peria exited
com tho soom upon completion of Ge ant. When the
police entered the premises, they were met by petitioner at
the reception booth at the front door of the lounge. He
accompanied them on an inspection of the premises and
they observed Peria and Wolfe exit separately from the
closed room, entered the room and saw a bottle of cham-
nage ace Cama See

At the close of the Commor case, petitioner
moved far 0 Ginestad vendin of ast guilty on he Quah
that there was no or insufficient evidence that the female
had the purpose required under the statute or that petitioner
had the requisite knowledge, that there was no corrobora-
tion as required by Massachusetts General Laws 0. 272,
§ 11 (see Statutes Involved), and that the statute could not
be applied to an act of fellatio or to a purpose to engage in
that act or to a private consensual sexual act between adults
or to a purpose to engage in such an act. Petitioner pre-
served his exception to the denial of the motion and pursued
the issues on appeal (Tr. 244; R. 21-22; App. A at p. 5a).

7

Upon the close of all the evidence, petitioner renewed his
motion for a directed verdict of not guilty on the same
R. 22-23; App. A at p. 5a).

By request for instructions to the jury, petitior
ceumtad Gat Go Gatatn G8 eat eoaly @ exo Chat Gen
sexual intercourse or to acts or a purpose to engage in acts
which were consensual and between adults in private (R.
14-16; App. A at pp. 2a-3a). Exceptions to the refusal to
give these instructions were noted and the issues were pur-
sued on appeal (R. 23-25; 28-29; App. A at pp. 6a-8a).
Upon conviction, petitioner was sentenced to serve three
months in the house of correction and to pay a $1,250 fine.
A motion for stay of execution of sentence pending appeal
was denied by the trial justice, but granted by an appellate
justice. The stay was vacated subsequent to the denial of
petitioner's application for further appellate review by the
Supreme Judicial Court and petitioner commenced serving
his sentence on April 3, 1978.

7 7m: the Writ.

Il. Tue ENLARGEMENT OF THE Scope oF THE CRIMINAL
Stature uNpDeR Wuicn rue Perrrioner was CHARGED AND
THE APPLICATION OF THAT ENLARGED Score To THE Per-
trrioner VioLatep THe Due Process Clause or THe Four-
TEENTH AMENDMENT TO THE UNrrep States CoNnstTITUTION
IN THAT rr ConstrruTep a Rernoactive AND UNFORESEE-
ABLE APPLICATION OF THE CRIMINAL Law.

Leonean amy neo City of Columbia, 378 U.S. 347

tion of the narrow and precise language of a state statute to
conduct which was not previous!v within the reach of the
statute.

Petitioner contends that, prior to the decision by the Ap-
peals Court in his case applying the statute to an act of
fellatio, the term “sexual intercourse” as used in Massachu-
setts General Laws c. 272, § 6, referred only to the act by
Se ne ee
ash enteannednnaltnas tien aadisemenianaaaian
of thet tenn fo Mennsiuntts coe law. See Argument

xp: co ne Se ee

Argument, I.A.2., infra.
The decision of the Appeals Court is in direct conflict

with decisions of this Court in Bouie v. City of Columbia,
supra, and Douglas v. Buder, 412 U.S. 430 (1973). It is
also in conflict with the rationale of Rose v. Locke, 423

fer the reason that that decision upheld the applicatio of
the caste catate cally Gane Gn cate bad geacinady een
persons every reason to believe that the acts for which the
prosecution was commenced were within the statutory
language.

This is not an isolated case or an isolated decision by the
Appeals Court. While counsel cannot state how many
prosecutions are still pending under this statute, they can
state that they represent five other defendants against whom
fellatio or attempted acts of fellatio which occurred prior to
the decision of the Appeals Court in this case. Accordingly,
a decision by this Court on this issue will directly resolve
issues in at least five other prosecutions under this statute.

RS pa OSS Cae Se See
Deuien 6 tents cuenta 0 thats eb enema at
of fellatio on his premises because the Supreme Judicial
and consensual act of fellatio between adults is not a crimi-
od cit clita &@ Guenndiinn to Ghutetinntn See Com-
monwealth v. Balthazar, 366 Mass. 298 (1974).

the Meaning of the Term “Sorual Deters & poser =
plication to the Facts of this Case Deprived the Pe.
titioner of Due Process of Law.

1. The Meaning of the Term “Sexual Intercourse” as
Construed in Massachusetts Case Law.

do neem of GL. 0. O04 ls the date of the alleged
offense — October 14, 1976. Petitioner contends that by
the term “sexual intercourse” in G.L. c. 272, § 6, was meant
the act by which the male sexual organ penetrates the fe-
male sexual organ and not the act of fellatio.

Dictionaries provide the meanings of the terms “sexual
intercourse,” “fellatio” and “carnal knowledge” as they are
commonly used and understood.’ “Sexual intercourse” is
defined as “Coitus, especially between humans.” The
American Heritage Dictionary (1973) 1138. “Carnal know!l-

The dictionary definition of “carnal knowledge” is included here be-
eum Co pee vain & SS. 0 272, § 6, used the language
knowledge.” koe Casi enmgnene tin, afte

10

edge” is defined as “Sexual intercourse.” Jd. at 205. “Fel-
latio” ee ee Id. at
483. Webster's Third New International Dictionary (1964)
is in accord, as is Black’s Law Dictionary (4th ed. 1968).
tion between the two types of sexual acts and there is no
confusion as to the specific physical act which each word
describes or any overlap between the words “fellatio” and
“sexual intercourse.”

Massachusetts case law unvaryingly has construed the
terms “sexual intercourse” and “fellatio” in accordance with
nes hen So Sep eth o feuncaniinn tow of Go Guneee-
wealth that “[i}f, in the use of terms defining an offence,

species of tmenenality, the court can only give a like effect
to such words.” Commonwealth v. Cook, 53 Mass. (12

Met.) 93, 96-97 (1846). Thus, in Commonweam v. Lynes,
142 Mass. 577, 581-582 (1886), the Supreme Judicial Court
of sexual intercourse and that the trial judge properly in-
structed the jury that proof of carnal knowledge and pene-
ae a ee oa See also

onwealth v. McCan, 277 Mass. 199, 203 (1931);
v. Hussey, 157 Mass. 415, 416 (1892). In

y v. Squires, 97 Mass. 59 (1867), the Su-
prem Jadiotel Court held thet:

[Flrom very early times, in the law, as in common
of a woman by a man has been sexual bodily connec-
tion; and these words, without more, have been used
in that sense by writers of the highest authority on

ll

criminal law, when undertaking to give a full and pre-
cise definition of the crime of rape. 97 Mass. at 61.

The difference between carnal copulation and other types of
sexual acts was made clear in Commonwealth v. Delano,
197 Mass. 166, 166-167 (1908), where the Court held that a
prior version of c. 272, § 35, which made criminal the
commission of any and all unnatural and lascivious acts
with another person, could not be applied to an act of
copulation because “[c Jopulation is the natural act of coition
and is not within the statute.” In Commonwealth v. Bal-
thazar, 366 Mass. 298, 302 (1974), the Supreme Judicial
Court held that an act of fellatio is an unnatural and lasci-
vious act within the meaning of G.L. c. 272, § 35. See also
Commonwealth v. Deschamps, 1 Mass. App. Ct. 1 (1972).
From these cases it is clear that Massachusetts courts have
always distinguished between carnal knowledge (which is
sexual intercourse), on the one hand, and unneturel and
preting the term “semuel intercourse” on tile & ound
with the common usage and understanding of the term set
forth above and make clear that sexual intercourse is the act
by which the male sex organ penetrates the female sex
organ, that it is a different act than the act of fellatio, and
that the two acts have never been considered to be under
the same statute in the Commonwealth of Massachusetts.

nother yates nterpreting that amendment.
Ba 1906 Geo Micmadbunts Restate enanied Go Meme.
chusetts rape statute (G.L. c. 265, § 22) to provide a punish-
ment for both “sexual intercourse ... [and] unnatural
sexual intercourse” (Stat. 1974, c. 474, § 1) where the statute

12

had previously made criminal only the forcible commission
of “carnal knowledge.” If the Legislature had thought or
intended that the words “sexual intercourse” included acts
of fellatio, it would not have distinguished between “sexual
intercourse” and “unnatural sexual intercourse” in the
amendment.

The recent decision of the Supreme Judicial Court in
Commonwealth v. Gallant, _... Mass. _. (1977) (Mass.
Adv. Sh. [1977] 2254), interpreting and construing the new
rape statute, reenforces petitioner's contentions:

By sexual intercourse, the Legislature undoubtedly in-
tended the traditional common law notion of rape, the
penetration of the female sex organ by the male sex
organ, with or without emission.... Similarly, the
definition of “unnatural sexual intercourse” must be
taken to include oral and anal intercourse, including
fellatio, cunnilingus, and other intrusions of a part of a
person's body or other object into the genital or anal
opening of another person's body. Jd. at 2263.

See also Commonwealth v. Gonzales, __. Mass. App. Ct.
___ (1977) (Mass. App. Ct. Adv. Sh. (1977) 1211), holdin,
that forcible sexual intercourse violates the “sexual inter-
course” portion of G.L. c. 265, § 22, and that forcible anal
intercourse violates the “unnatural sexual intercourse” por-
tion of the statute.

In the Gallant decision, the court also noted that the
words “unlawful sexual intercourse” had been used synony-
mously with “unlawful carnal knowledge” in many previous
decisions in Massachusetts."* Jd. at 2263 n. 7.

*The predecessor version of c. 272, § @, used the words “being unlaw-
fully and carnally known” in place of the words “unlawfully having

13

It is thus certain from the dictionary definitions of the
term “sexual intercourse, ° which reflect common usage and
aun cases, which reflect the legal counterpart, that the
term “venuel intercourse” has one and only one meaning in

ssachusetts and that that meaning is the one propounded
ty outa = the act by which the male sexual organ
penetrates the female sexual organ. The term “sexual inter-
course” has not only never been held to refer to an act of
fellatio, but every decision supports the contention that the
two physical acts are separate and distinct acts which are
terms.

2. The Term “Sexual Intercourse” was Judicially En-

larged and Retroactively Applied in Petitioner's Case
in Violation of the Due Process Clause.

In the state court proceedings, petitioner first asserted
that G.L. c. 272, § 6, was unconstitutionally vague by his

motion to dismiss the complaint in the Superior Court. In
part, the motion was based on the inapplicability of the
statute where the act upon which the prosecution was based
was an act of fellatio or a purpose to engage in such con-
duct. When the prosecution rested its case, petitioner again
pursued the point by moving for a directed verdict of not
uilty and arguing that the statute could not constitutionally
be applied to the facts in this case. Petitioner again asserted
his legal theory of the case in his requests for instructions to

sexual intercourse.” See Stat. 1886, c. 329, § 5. In its brief to the
ents Gee at Rent, Ge Comecewedth canted tat the
words “sexual intercourse” were coextensive in meaning with the words
“carnal knowledge.” This identity, of course, is precisely the petitioner's
point.

14

the jury which included an instruction defining sexual inter-
course as the natural act of coition or copulation. This re-
quest was denied and the justice instructed that both sexual
intercourse and unnatural sexual intercourse, as those terms
are used in the rape statute, were prohibited by G.L.
c. 272, § 6, and constituted sexual intercourse under that
statute. Exceptions were saved to each adverse ruling. On
appeal, the petitioner again pursued all of the above argu-
ments.

In each instance in the trial court and on appeal, the pros-
ecution contended and the court held or ruled that an act
of fellatio is an act of sexual intercourse within the meaning
of G.L. ec. 272, § 6. See Commonwealth v. Bucaulis,
Mass. App. Ct. ___ (1978) (Mass. App. Ct. Adv. Sh. [1978]
124, 132), holding that:

The term “sexual intercourse” has commonly been em-
ployed to describe a variety of sexual conduct, including
the act of fellatio.... There is nothing before us
which indicates that the act of fellatio was previously
considered to be outside the scope of the statute... .
We accordingly conclude that the defendant should
have understood that his conduct was in violation of
the statute. (App. B at p. 16a.)

At no time was any authority binding upon petitioner given
for that ruling.’ Indeed, not only was there no authority to

*The Appeals Court did refer to Commonwealth v. Gallant, supra, in
support of its decision. However, as noted above, that decision supports
the petitioner's argument and not the Appeals Court ruling. Even if the
decision did support the Appeals Court ruling, it could not be relied
upon to support petitioner's conviction since it was not decided prior to
the date of the alleged offense and therefore gave no notice as to the
change in the construction of the term “sexual intercourse” from all

15

support the court’s rulings, but all authority as to the
meaning of the statute supports petitioner's argument. See
Argument I.A.1., supra. Thus, there was both an enlarge-
ment of the meaning of the term “sexual intercourse” which
was not foreseeable and an application of that new meaning
to the facts of this case. This factor distinguishes this case
from Rose v. Locke, 423 U.S. 48 (1975), which the Appeals
Court mentioned in its opinion. The United States Supreme
Court held in that case that the state had previously held
that the conduct involved was within the reach of the chal-
lenged statute. Thus, the application of the statute to that
defendant was not unforeseeable. Had the prior meaning
of the term “sexual intercourse” been adhered to in this case,
petitioner would have prevailed. This is precisely the type
of action held to be impermissible under the Due Process
Clause of the Fourteenth Amendment in Bouie v. City of
Columbia, supra, and Douglas v. Buder, supra. The pe-
tition should be granted to review this issue.

B. General Laws c. 272, § 6, is Unconstitutional as Ap-
plied to a Private and Consensual Act of Fellatio Be-
tween Adults.

Assuming that petitioner's rights were not violated for the
reasons set forth in Argument I.A., supra, petitioner con-
tends here that G.L. c. 272, § 6, is unconstitutional as ap-
plied to a private and consensual act of fellatio between
adults. In subargument 1, infra, petitioner asserts that the

prior decisions. See Balthazar v. Superior Court, 428 F. Supp. 425 (D.
Mass. 1977), aff'd, No. 77-1159 (lst Cir. April 4, 1978), granting a writ
of habeas corpus where there had been no construction of the statute
involved prior to the defendant's conduct while holding that interim
decisions saved the constitutionality of the statute in future. Thus, for
purposes of determining the foreseeability of the enlargement of the
meaning of the term, Gallant does not support the court's application of
the term to the conduct here.

16

statute was unforeseeably and retroactively applied to con-
duct which was not criminal when it was engaged in. In
subargument 2, infra, petitioner asserts that unless the’stat-
ute is construed as not applicable to private and consensual
acts of adults, it is unconstitutionally vague as applied be-
cause it failed to give adequate notice, in light of Common-
wealth v. Balthazar, supra, that a private consensual act of
fellatio between adults was unlawful.

1. Chapter 272, § 6, was Unforeseeably and Retro-
actively Applied to a Private and Consensual Act
of Fellatio Between Adults — An Act which was not
Criminal When Engaged In.

General Laws c. 272, § 6, does not make criminal one’s
knowingly permitting a female on his premises for the pur-
pose of having sexual intercourse under any and all circum-
stances, but applies only when the purpose of the female is
unlawfully to have sexual intercourse.

By common usage and understanding, the word “unlaw-
ful” means “[t hat which is contrary to law or unauthorized
by law .. . [t]hat which is not lawful . . . [t]he acting con-
trary to, or in defiance of the law; disobeying or disre-
garding the law.” Black’s Law Dictionary, supra, at 1705.
An “unlawful act” is defined as an “[a]ct contrary to law,
and presupposes that there must be an existing law.” Id.
“Unlawfully” is defined as “[i]llegally; wrongfully.” Jd. at
1706.

In Commonwealth v. Balthazar, supra, the Supreme
Judicial Court held that a private and consensual act of
fellatio between adults is not unlawful in Massachusetts. In
Commonwealth v. Scagliotti, ._. Mass. _ (1977)
(Mass. Adv. Sh. [1977] 2323), the court held that privacy
means “removal from the public view and elimination of

17

the possibility that . . . [a] defendant’s conduct might give
offense to persons present in a place frequented by members
of the public for reasons of business, entertainment, or the
like.” Id. at 2325. In that case, the defendant had solicited
a police officer to commit an unnatural act in a cubical in a
theatre open to the public. The court held that a question
of privacy was presented for the jury’s consideration.

The two cases cited make clear that, to determine whether
a purpose to engage in a sexual act is a purpose to engage
in an unlawful act, one must have reference to the circum-
stances under which that act would occur. In this case, the
act occurred in a room which was closed to the public, had
a door, was unoccupied by any other persons, and was so
dark that one could not see into the room with the naked
eye and could not see into the booth unless one were in the
booth. A clear question of privacy was presented for the
jury even if the court could not rule as a matter of law that
the act was in private. Thus, even if one could infer from
Connie Peria’s performance of a consensual act of fellatio in
private with Mr. Wolfe that she had a purpose to engage in
such an act, the statute was applied to an act and a purpose
to engage in an act under circumstances which would not
render that act unlawful.'® Thus, the statute was unfore-
seeably and retroactively applied to conduct which was not
unlawful at the time that the conduct was engaged in.
Such an application violates the Due Process Clause of the
Fourteenth Amendment and the principles underlying the

'°It is noted that the state courts did not use this approach to deny the
petitioner's arguments and to sustain his conviction. They clearly relied
upon a holding that an act of fellatio is an act of sexual intercourse. See
Argument I.A., supra. Throughout the state court proceedings,
however, petitioner argued that a private and consensual act of sexual
intercourse was not unlawful in light of the decision in Balthazar and
includes that argument here as an alternative to the argument set forth
in LA., supra.

18

United States Supreme Court’s decisions in Bouie v. City of
Columbia, supra, and Douglas v. Buder, supra.

2. General Laws c. 272, § 6, is Unconstitutionally
Vague as Applied in that it Fails to Provide Adequate
Notice that a Private Consensual Act of Fellatio is
Unlawful.

The clear implication, although not the express holding,
of the Appeals Court in petitioner's case is that G.L. c. 272,
§ 6, makes criminal the knowing allowance of a female to
be on premises for the purpose of engaging in an act of
fellatio even if that act is between consenting adults and in
private. If such is the meaning to be given to the statute,
then the petitioner contends that the statute is unconstitu-
tionally vague in that it fails to provide adequate notice
that such an act is an unlawful act.

The clear meaning of the decision in Commonwealth v.
Balthazar, supra, is that private and consensual sexual acts
of adults are not matters which certain state statutes regulate
even if the state has authority to regulate such conduct.
While the decision in that case concerned unnatural sex acts
under G.L. c. 272, § 35, it gave the public every reason to
believe that natural sex acts and unnatural acts under simi-
lar statutes would be outside of the prohibition of those
statutes. That reason is even stronger where the act held to
be unlawful — namely, fellatio — has previously been held
not to be unlawful when engaged in by consenting adults in
private. Accordingly, to the extent that c. 272, § 6, has
reference to other statutes or contemporary community
standards to determine what conduct is criminal, see Argu-
ment I1.B.1., supra, it leaves an individual of common
understanding and intelligence with an expectation that
consensual private sex acts are not unlawful. That such an

19

expectation is a reasonable expectation — indeed, even an
accurate expectation — is clear from Massachusetts case law
decided after the date of the alleged offense. In Common-
wealth v. Reilly, ___ Mass. App. Ct. ____ (1977) (Mass.
App. Ct. Adv. Sh. [1977] 736), the Appeals Court used
broad language in rejecting an assertion by the Common-
wealth that a defendant bears the burden of proving a pri-
vate and consensual act. The court stated that the Com-
monwealth’s contention

misconceives the significance of the Balthazar case.
That case concluded that “consensual conduct in private
between adults is not prohibited by [G.L. c. 272,]
§ 35.”... That the act was consented to is not “a
matter of excuse or justification” . . . for unnatural and
lascivious conduct — however pejorative that expression
may be — is no longer, in those circumstances, a crime
required to be excused or justified. Jd. at 739.

The case of Commonwealth v. Scagliotti, supra, is equally
helpful in determining the implications of Commonwealth
v. Balthazar, supra. The court held that a consensual un-
natural act must be committed in a public place in order to
be punishable and that the public nature of the consensual
act is an essential element to be proved by the prosecution.

Throughout the state court proceedings, at every available
opportunity, the petitioner challenged the application of
c. 272, § 6, to the conduct involved in this case on the
ground that the statute was unconstitutionally vague if it
applied to one’s knowing sufferance of a female to be on
premises for the purposes of engaging in a private and con-
sensual act of fellatio. The trial court rejected the peti-
tioner’s arguments and the Appeals Court sustained that

rejection by asserting that those privacy rights which might
be recognized with regard to certain sexual conduct engaged
in between consenting adults in private cannot be raised in
defense of the commission of prostitution on premises to
which the public has access. Commonwealth v. Bucaulis,
supra, at 131 (App. B at p. 15a). That assertion is clearly
erroneous for three reasons. First, as is manifestly apparent
fron: Commonwealth v. Reilly, supra, and Commonwealth
v. Seagliotti, supra, the private and consensual nature of
the act is not a matter of defense but is an affirmative part
of the Coramonwealth’s case.'' Second, the petitioner was
not charged with permitting prostitution on the premises.
Such a possible charge arises under entirely different stat-
utes, see G.L. c. 139, §§ 4, 5 and 20, and raises entirely
different issues. Third, Commonwealth v. King, ——
Mass. _.. (1977) (Mass. Adv. Sh. [1977] 2636), was in-
correctly cited by the Appeals Court because there the Su-
preme Judicial Court expressly stated, “we do not decide
whether ... [a conviction for prostitution based on per-
formance of sexual acts in private} would implicate a right
of privacy.” Jd. at 2646.

Finally, any limitation upon the right of individuals to
assert that private consensual acts of fellatio are not unlaw-
ful, which may be derived from Commonwealth v. King,
does not affect the issue whether G.L. c. 272, § 6, is uncon-
stitutional as applied to conduct which occurred in 1976 —
a time prior to the decision in Commonwealth v. King.
See Balthazar v. Superior Court, supra.

For the foregoing reasons, petitioner requests that a writ
of certiorari issue.

‘Rejecting the petitioner's requests for instructions, the trial justice
did not instruct that the Commonwealth bore the burden of proof on
these elements. This also was erroneous. See Mullaney v. Wilbur, 421
U.S. 684 (1975).

21

Il. Perrrioner was Dernivep or Due Process or Law
Because nis Conviction was Basep upon No on INsvur-
ricient Facts ro Support Finpincs THaT THE FEMALE
Hap a Purpose or UNLAwrutty Havine Sexvua. INTen-
course on THAT Perirrionen Hap KNOWLEDGE OF THAT
PURPOSE AND THERE WAS No CornrosporaTion as Reoumep
sy Massacnuserts Genera Laws c. 272, § 11, anp
Because THE AFFIRMANCE OF HIS CONVICTION BY THE Ap-
rpeacs Court was Basep upon Facts Nort in tue Recorp
AND Faitep to Account ror Facts in THE Recorp BEearinc
ON MATERIAL IssvuEs.

As a matter of constitutional law, a conviction based
upon no or insufficient facts establishing a violation of the
applicable statute deprives a defendant of due process of
law under the Fourteenth Amendment to the United States
Constitution. See Bouie v. City of Columbia, supra;
Douglas v. Buder, supra. Petitioner contends that on two
of the express material elements of G.L. c. 272, § 6, there
were no or insufficient facts to sustain his conviction. He
also asserts that there was no corroboration as required by
state law of the testimony of a witness in a material
particular and that his conviction was sustained on the basis
of facts not in the record and without accounting for facts
in the record which bear on material issues.

A. There was No Evidence that Connie Peria HKesorted
to or was in or Upon the Premises for the Purpose of
Unlawfully Having Sexual Intercourse.

The only direct evidence relating to the purpose for
which Connie Peria was on the premises was introduced
by the Commonwealth and, if believed, would warrant the

jury in finding that her purpose in being on the premises

was to act as a dancer and entertainer. A purpose of
unlawfully having sexual intercourse could certainly not be
inferred from this fact. Further, no act of sexual inter-
course or offer to engage in an act of sexual intercourse
occurred on the premises. No statement of intention or
purpose by Peria to be on the premises for the purpose of
having sexual intercourse was introduced as evidence.
Even if an act of fellatio were considered to be an act of
sexual intercourse within the meaning of the statute, there
was insufficient evidence to establish that Peria resorted to
or was on the premises for the purpose of engaging in such
an act. Not mentioned or accounted for in the Appeals
Court opinion but introduced at the trial was Mr. Wolfe's
admission that, when he and Peria went to the darkened
room, she did not do anything until he talked her into play-
ing with him and then performing fellatio on him. The
fact that Mr. Wolfe had to talk her into performing the act,
in light of the testimony as to the nature of her employment
as a dancer and entertainer, bears directly on the question
of her purpose. See Yoder v. United States, 80 F. 2d 665
(10th Cir. 1935), holding that proof of a narrowly defined
purpose can only be established by proof of that specific
purpose and not by proof of a mere inclination or willing-
ness to do the act for which purpose must be shown. Proof
of purpose requires proof of motivation. Jd. at 670.

In addition, there was no proof that an act of sexual
intercourse was engaged in. As asserted in Argument I.A.,
supra, sexual intercourse is a narrowly defined act, evidence
of which was lacking in this case.

Finally, there was no evidence that Connie Peria’s pur-
pose of engaging in an act of sexual intercourse was to
engage in such an act under circumstances which would
make that act unlawful. For the reasons stated in Argu-
ment I.B., supra, in order to be unlawful the act would

enone There was no evidence thatthe act wa
wusiils haien Gen Gunton ein endhs <6 Gane tunes. ywomamenan
wealth v. Scagliotti, supra, at 2324. Its failure to introduce
any evidence on these issues constitutes a failure to meet the
burden of its case-in-chief.

Accordingly, there was no or insufficient evidence that
Connie Peria resorted or was in the premises for the purpose
of unlawfully having sexual intercourse.

B. There was No or Insufficient Evidence that Peti-
tioner Had Knowledge of Connie Peria’s Purpose.

Contrary to the assertion of the Appeals Court in its
decision that the petitioner was present in the lounge during
the events that issue in this case, see Commonwealth v.
Bucaulis, supra, at 125 (App. B at p. 10a), the record in
this case affirmatively lacks evidence to support such a
finding. Mr. Wolfe testified that he never saw petitioner
talk to the barmaid or to Connie Peria, nor did he see peti-
tioner in the main bar or in the closed room where the act
was performed. He testified that he did not see the peti-
tioner until after he had exited from the room and all of his
conversations with Peria and the act itself were completed.
When the police officers entered the premises, they found
the petitioner at the front door in the reception booth.
Mr. Wolfe had been in the darkened room for approximate-
ly 20 minutes before he exited. It was prior to the time
when he went into that room that he engaged in his con-
versation with Peria at the bar. These facts fall far short of
permitting a finding that petitioner was present in the
lounge during the events at issue in this case.

While physical presence on the premises is not a material
element of an offense under c. 272, § 6, it bears directly on
the question of knowledge. In Commonwealth v.
Altenhaus, 317 Mass. 270 (1944), the Supreme Judicial
Court held that the word “knowingly” when used in a
criminal statute commonly imports a perception of the facts
requisite to make up the crime. Jd. at 273. The facts
which are requisite here to make up the crime consist of a
perception of the fact that Connie Peria resorted to or was
on the premises for the purpose of unlawfully having sexual
intercourse and the knowing sufferance of her to be there
for that purpose. Given Connie Peria’s employment as a
dancer and entertainer, petitioner would naturally have
expected her to be on the premises, even if it could be
found that he knew she was there on the date in question.
However, no evidence was presented even of that fact.
The Altenhaus case is particularly instructive on the strict-
ness of the knowledge requirement and a comparison of the
evidence in each case shows that the requirement was not
met here.

The Appeals Court, in its decision affirming the con-
viction, implicitly acknowledged the lack of evidence of
petitioner's knowledge of the requisite purpose by relying
upon facts which clearly do not establish such knowledge.
First, the Appeals Court asserted that the evidence in the
case indicates a transaction for sexual services undertaken
openly at the bar. No evidence was introduced as against
petitioner that there was a transaction for sexual services.
Mr. Wolfe's testimony concerning his conversation with Miss
Peria was excluded as against petitioner.'* Accordingly, the
Appeals Court, as well as the jury, could not rely upon it to
support the conviction. Moreover, there was no showing
that the transaction, if one could be found to have oc-

“See n. 6 and accompanying text, supra.

curred, was “open.” Without the type of inquiry required
by Commonwealth v. Scagliotti, supra, the Appeals Court's
characterization of the transaction as “open” is without
support. Finally, the prohibition of c. 272, § 6, is against a
purpose of engaging in the act under circumstances which
would constitute that act as unlawful.

Secondly, the Appeals Court asserts that the transaction
was undertaken by persons “normally under the direct
supervision of the defendeut.” Jd. at 129 (App. B at
p. 13a). This statement constitutes an implicit recognition
that there was no evidence that the employees were under
the direct supervision of the petitioner at the time that any
transaction or unlawful act occurred. There was no evi-
dence in the case showing that unlawful acts had occurred
at any other time such as might give rise to an inference of
complicity by the petitioner in this particular conduct.

Finally, the Appeals Court refers to “all the other circum-
stances in the case” from which the jury could reasonably
conclude that the petitioner was aware of and acquiesced in
the unlawful conduct. Jd. at 129 (App. B at p. 13a). No
such other circumstances are recited in the opinion nor was
there evidence of such other circumstances in the record.
The mere statement does not make up for the missing proof.

For the foregoing reasons, petitioner asserts that there
was no or insufficient evidence of his knowledge of the un-
lawful act and, therefore, that his conviction violates the
Due Process Clause of the Fourteenth Amendment.

C. There was No Corroboration as Required by
General Laws c. 272, § 11.

Massachusetts General Laws c. 272, § 11, requires that a
defendant shall not be convicted of a violation of c. 272,
§ 6, upon the testimony of one witness only unless that wit-

ness’ testimony is corroborated in a material particular.
That section, therefore, creates a substantive rule of law
enuring to the benefit of defendants to charges under
c. 272, § 6, and giving them an affirmative protection
against conviction if the statute is not satisfied. That right
is a right protected by the Due Process Clause of the
Fourteenth Amendment, the satisfaction of which presents a
federal question. Mere assertion by a state court that the
requirements of the statute have been met cannot escape
review, any more than a state court's assertion that there is
sufficient evidence to convict a defendant can escape review
against a challenge that the conviction was based upon no
or insufficient evidence.

In this case, the only corroboration consisted of the police
officers’ observations of Peria and Wolfe emerging from the
darkened room of the lounge and their discovery of a bottle
of champagne and two glasses in a booth in that lounge.
The Appeals Court assertion that these observations con-
stituted corroboration, within the meaning of the statute, of
the fact that an act of fellatio occurred in the darkened
room is preposterous. There is no logical or legal relevancy
between the facts corroborated and the material particular
which must be corroborated in order to find that the statute
has been satisfied. This corroboration is no more than was
found inadequate in Commonwealth v. Williams, 353
Mass. 233 (1967), where the court held that a defendant's
admission that he was re ee SS ee
under this statute. It is yt from Commonwealth v.
DeBrosky, 363 Mass. 718 (1973), that the corre

requirement of c. 272, § 11, » en cult eee
which can only be satisfied by corroboration of the defend-

27

ant’s knowledge of the purpose for which the female is
alleged to have resorted to the premises. Cf. id. at 729.'°

For the foregoing reasons, petitioner contends that his
conviction was returned and affirmed without satisfaction
of the corroboration requirement of c. 272, § 11, in that
there were no or insufficient facts to establish such cor-
roboration. Accordingly, his conviction violates the Due
Process Clause.

III]. Te Instructions To THE Jury Deprivep PetirioneR
or Dus Process or Law.

Petitioner made several requests for instructions to the
jury which were denied by the trial justice. In addition, he
took exception to several instructions actually given by the
justice. In addressing these issues on appeal, the Appeals
Court did not independently state its reason for overruling
petitioner's objection on each point raised, but instead
asserted that the charge as a whole did not deprive him of
his rights. See Commonwealth v. Bucaulis, supra, at 133
(App. B at pp. 16a-17a).

28

A. The Trial Justice Failed to Instruct as Requested
that the Term “Sexual Intercourse” Refers to the Natur-
al Act of Coition or Copulation and does Not Refer
to Types of Sexual Acts Other than that Act and Erred
by Instructing that the Term “Sexual Intercourse”
Includes Unnatural Acts.

Petitioner requested an instruction derived from Com-
monwealth v. Delanu, supra, that sexual intercourse is the
natural act of coition or copulation. The trial justice
refused to give this instruction and instructed that sexual
intercourse refers to both sexual intercourse and unnatural
sexual intercourse, as those terms are used in the rape
statute. For the reasons set forth in Argument I.A., such
instructions were erroneous and expanded the scope of the
statute beyond its meaning as of the date of the offense.
This expanded scope permitted the jury to find petitioner
guilty of an act which was not within the reach of the
statute on the date of the alleged offense and, therefore,
deprived him of due process of law. See Argument I.A.,
supra.

B. The Trial Justice Refused to Instruct the Jury as
Requested by the Petitioner or by Any Other Instruc-
tion that They were Required to Determine the Issue
Whether the Act which Occurred was Unlawful and
that Sexual Intercourse Between Unrelated, Consenting
Adults in Private is Not Unlawful; He Further Failed to
Instruct as Requested or by Any Other Instruction as
to the Circumstances under which the Jury Could
Find that the Act was Committed in Private.

As is set forth in Argument I.B., supra, it is the law of
the Commonwealth that an act of fellatio which occurs
between consenting adults and in private is not unlawful.

See Commonwealth v. Balthazar, supra. In order to show
that the act was unlawful, the Commonwealth bears the
burden of proving that the act was either nonconsensual or
not in private because those elements are material elements
of the offense. See Commonwealth v. Scagliotti, supra;
Commonwealth v. Reilly, supra. The failure of the trial
justice to require the jury to determine whether the act was
between consenting adults and in private eliminated the
prosecution's burden of establishing its case-in-chief. It ic a
matter of constitutional law that the state must prove every
fact necessary to establish the material elements with which
a defendant is charged in order to maintain his conviction.
See Mullaney v. Wilbur, 421 U.S. 684 (1975); In re Win-
ship, 397 U.S. 358 (1970). The elimination of this obliga-
tion on the part of the Commonwealth violated petitioner's
rights to due process of law.

C. The Trial Justice Failed to Instruct as Requested or
by Any Other Instruction that the Jury Must Find that
Petitioner Knew the Female’s Unlawful Purpose in
Being on the Premises Before they Could Find him
Guilty and that Such Proof Required a Finding that
the Petitioner Perceived or was Aware of her Unlawful
Purpose in Being on the Premises.

As is set forth in Argument II.B., supra, it is a matter of
law of the Commonwealth that proof of knowledge requires
proof that petitioner perceived or was aware of the facts
requisite to make up the crime. In this case the Common-
wealth was required to prove that petitioner perceived or
was aware of Connie Peria’s unlawful purpose in being on
the premises. Petitioner requested an instruction so charg-
ing the jury. The trial justice refused to give that instruc-
tion or any other instruction requiring the jury to make a

30

finding that petitioner perceived or was aware of Connie
Peria’s unlawful purpose in being on the premises before
they could find him guilty. The failure so to instruct
constitutes a constitutional deprivation because it eliminated
the need for the jury to make an affirmative determination
of a material element of the offense before they could find

petitioner guilty.

Conclusion.

For the reasons stated, the petitioner urges this Court to
grant the petition for a writ of certiorari to the Appeals
Court of the Commonwealth of Massachusetts.

Respectfilly submitted,

MORRIS M. GOLDINGS,
KENNETH H. TATARIAN,
MAHONEY, HAWKES & GOLDINGS,
500 Boylston Street,
Boston, Massachusetts 02116.
(617) 261-2300

la

Appendix A.
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, SS: SuPEeRIOR Court
No. 06285

COMMONWEALTH OF MASSACHUSETTS

vo.

GEORGE M. BUCUVALAS

Motion to Dismiss the Complaint.

Now comes the Defendant and moves to dismiss the Com-
plaint in the above-captioned matter and urges as grounds
therefor the following:

1. The statute under which this Complaint is brought is
unconstitutionally vague and overbroad in violation of the
First, Fourth and Fourteenth Amendments to the United
States Constitution and Articles XII, XIV and XVI of the
Declaration of Rights of the Constitution of the Common-
wealth and infringes on rights protected by said Amend-
ments and Articles.

2. The statute under which this Complaint has been
brought does not, as a matter of statutory construction,
apply to one who permits or knowingly suffers an adult
female to resort to or be in or upon a place for the purpose
of having consensual sexual intercourse with an adult male.

3. A person may not be convicted of a violation of G.L.
c. 272 § 6 where the only evidence of unlawful acts on the
premises does not include the act of sexual intercourse.

2a

4. The Complaint fails to set forth a crime or offense
plainly and fully, substantially and formally as required by
Article XII of the Declaration of Rights of the Constitution
of the Commonwealth.

Wuenrerore, the Defendant urges that this Honorable
Court dismiss the above-numbered Complaint against him.

By his Attorneys,

MORRIS M. GOLDINGS
KENNETH H. TATARIAN
Manoney, Hawkes & GOoLDINGS

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, SS: SuPERIOR COURT
No. 06285

[Title omitted in printing. ]
Defendant’s Requests for Instructions to the Jury.

The Defendant requests that the Court include the follow-
ing among its instructions to the jury:

19. In determining whether the facts establish beyond a
reasonable doubt that Miss Peria was there for the purpose
of unlawfully having sexua! intercourse, you should consider
the fact that the Commonwealth has presented no testimony
that an act of sexual intercourse occurred. Sexual inter-
course is a particular type of sexual act. It is the natural

3a

act of coition or copulation. The term sexual intercourse
does not refer to types of sexual acts other than the natural
act of coition or copulation. See Commonwealth v.
Delano, 197 Mass. 166 (1908); Commonwealth v. Lynes,
142 Mass. 557 (1886).

21. If you find beyond a reasonable doubt that Miss
Peria was on the premises of the Two O’Clock Lounge for
the purpose of unlawfully having sexual intercourse, then
you must decide whether Mr. Bucuvalas knew that she was
there for that purpose. You can find that Mr. Bucuvalas
knew that she was there for that purpose only if you are
convinced beyond a reasonable doubt that he perceived or
was aware of the fact that that was her purpose in being
there. If you do not find that he had such knowledge of
her purpose, then you must find Mr. Bucuvalas not guilty.
See Commonwealth v. Altenhaus, 317 Mass. 270 (1944).

22. If you find that Miss Peria’s purpose was to engage
in sexual intercourse on the premises, then you must deter-
mine whether that sexual intercourse was unlawful. Under
our laws, sexual intercourse between unrelated, consenting
adults in private is not unlawful. If you find that any
sexual intercourse which occurred was between consenting
adults under circumstances which would give a reasonable
expectation of privacy to their conduct then you must find
that the sexual intercourse was not unlawful. Unless you
find that the sexual intercourse was unlawful, you must find
Mr. Bucuvalas not guilty. Commonwealth v. Balthazar,
318 N.E.2d 478 (Mass. 1974).

4a
COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, SS. SuPERIOR COURT
No. 06285

[Title omitted in printing. ]
Defendant’s Assignment of Errors.

The Defendant respectfully assigns as errors with respect
to the above-numbered Complaint the following:

1. The Superior Court justice erred in denying the
Defendant’s Motion to Dismiss the Complaint on the
grounds that: (1) the statute under which the Complaint
was brought is unconstitutionally vague and overbroad in
violation of the First, Fourth and Fourteenth Amendments
to the United States Constitution and Articles XII, XIV and
XVI of the Declaration of Rights of the Constitution of the
Commonwealth in that the statute fails to provide adequate
notice to persons of the conduct prohibited or adequate
guidance to the trier of fact and impermissibly infringes on
rights protected by said Amendments and Articles; (2) the
statute under which the Complaint was brought does not,
as a matter of statutory construction, apply to one who
permits or knowingly suffers an adult female to resort to or
be in or upon a place for the purpose of having consensual
sexual intercourse with an adult male; and (3) that the
Complaint fails to set forth a crime or offense plainly and
fully, substantially and formally, as required by Article XII
of the Declaration of Rights of the Constitution of the
Commonwealth.

Tr. 26, Exception 1.
Defendant’s Motion to Dismiss the Complaint.

5a

5. The Superior Court justice erred in denying the
Defendant’s Motion for a Directed Verdict made upon the
close of the Commonwealth’s case, on the grounds that:
(1) there was insufficient evidence from which the jury
could find beyond a reasonable doubt: (a) that Connie
Peria had resorted to or was in or upon the premises for the
purpose of unlawfully having sexual intercourse, (b) that
Defendant Bucuvalas knowingly suffered Connie Peria to
resort to or be in or upon the premises for said purpose, or
(c) that Connie Peria had unlawfully had sexual intercourse
on the premises with another person or had offered to have
such unlawful sexual intercourse; (2) there was no corrobo-
ration in a material particular as required by G.L. c. 272
§ 11; (3) G.L. ec. 272 § 6 does not, as a matter of statutory
construction, reach even the knowing sufferance of an adult
female to be upon premises for the purpose of engaging in
private consensual sexual intercourse with an adult male;
and (4) G.L. c. 272 § 6, as applied to the Defendant, is
unconstitutionally vague and overbroad for the reasons
stated in Assignment of Error No. 1(1).

Tr. 244, Exception 8.
Motion for Directed Verdict of Not Guilty.

6. The Superior Court justice erred in denying the
Defendant's Motion for a Directed Verdict made upon the
close of all the evidence on the same grounds as are stated
in Assignment of Error No. 5.

Tr. 245, Exception 10.
Motion for Directed Verdict of Not Guilty.

6a

8. The Superior Court justice erred in instructing the
jury that sexual intercourse between married persons is
lawful but that sexual intercourse between unmarried
persons or between a married person and an unmarried
person or between any two persons one of whom is a prosti-
tute, even if such acts are consensual and in private, is
unlawful and in failing to instruct the jury in accordance
with Paragraph 22 of Defendant’s Requests for Instructions
to the Jury on the grounds that the instructions given and
the failure to instruct in accordance with Paragraph 22,
individually and together: (1) gave the jury an erroneous
standard by which to determine whether the sexual conduct
was unlawful and failed to instruct the jury in accordance
with the prevailing standard of the lawfulness of sexual
intercourse between adults; (2) deprived the Defendant of
due process of law as guaranteed by the Fourteenth Amend-
ment to the United States Constitution and Article XII of
the Declaration of Rights of the Constitution of the
Commonwealth; and (3) subjected the Defendant to the
retroactive application of criminal law in violation of
Article I § 10 and the Fourteenth Amendment to the United
States Constitution and Article XII of the Declaration of
Rights of the Constitution of the Commonwealth.

Tr. 312, Exception 13.
Defendant’s Requests for Instructions to the Jury, Para-
graph 22.

9. The Superior Court justice erred in instructing the
jury, by reference to the statute defining the crime of rape,
that unnatural sexual intercourse is unlawful and is a form
of sexual intercourse on the grounds that such instruction:
(1) was entirely unrelated to the charge against the

Trt.

7a

Defendant and was prejudicial to the Defendant and
confusing to the jury; (2) impermissibly suggested that the
term “sexual intercourse” in G.L. c. 272 § 6 applied to
sexual conduct other than the entry of the male sexual
organ into the female sexual organ; (3) deprived the
Defendant of due process of law as secured by the Four-
teenth Amendment to the United States Constitution and
Article XII of the Declaration of Rights of the Constitution
of the Commonwealth; and (4) subjected the Defendant to
the retroactive application of criminal law in violation of
Article I § 10 and the Fourteenth Amendment to the United
States Constitution and Article XII of the Declaration of
Rights of the Constitution of the Commonwealth.

Tr. 313, Exception 14.

15. The Superior Court justice erred in failing to
instruct the jury in accordance with Paragraph 19 of
Defendant’s Requests for Instructions to the Jury on the
grounds that the failure to so instruct left the jury without a
correct definition of the term “sexual intercourse” as used in
G.L. c. 272 § 6 and permitted the jury to convict the
Defendant of a crime other than that charged in the
Complaint in violation of Defendant’s rights to due process
of law under the constitutional provisions stated in Assign-
ment of Error No. 10.

Tr. 314, Exception 17.

Defendant’s Requests for Instructions to the Jury, Para-
graph 19.

17. The Superior Court justice erred in failing to

instruct the jury in accordance with Paragraph 21 of
Defendant’s Requests for Instructions to the Jury on the

8a

grounds that the failure to so instruct left the jury without a
definition of or standard for determining whether the
Defendant had the requisite knowledge of the purpose for
which Miss Peria was alleged to have resorted to or been
upon the premises and permitted the jury to find the
Defendant guilty without a determination that the Defend-
ant perceived or was aware of the facts which constituted
the offense in viclation of Defendant’s rights to due process
of law under the constitutional provisions stated in Assign-
ment of Error No. 10.

Tr. 314, Exception 17.
Defendant’s Requests for Instructions to the Jury, Para-
graph 21.

~ -

9a
Appendix B.

APPEALS COURT.
COMMONWEALTH vs. GEORGE Bucau.Is.'

Suffolk. January 9, 1978. — February 24, 1978.
Present: Hare, C.J., Kevi.ie, & Brown, JJ.

Prostitution, Maintaining premises for. Constitutional Law, Vague-
ness of statute. Practice, Criminal, Charge to jury. Evidence, Form
of question. Wéitness, Corroboration. Words, “Sexual intercourse.”

CoMPLAINT received and sworn to in the Municipal Court
of the City of Boston on October 15, 1976.

On appeal to the Superior Court the case was tried before
Lappin, J.

Kenneth H. Tatarian (Morris M. Goldings with him) for
the defendant.

Timothy P. O'Neill, Assistant District Attorney, for the
Commonwealth.

Hae, C.J. The defendant was convicted in a District
Court on a complaint charging him with knowingly having
suffered the presence of certain females for the purpose of
unlawfully having sexual intercourse in premises under his
control in violation of G. L. c. 272, § 6. Upon claiming an
appeal the defendant was again tried along with one
Connie Peria before a jury in the Superior Court.* He was
again found guilty of violating G. L. c. 272, § 6, and now

appeals, arguing several assignments of error.

‘We adopt the spelling of the defendant's surname which appears in
the criminal complaint, while noting that in the pleadings and memo-
randa submitted by the defendant's attorney the name is spelled “Bucu-
valas” and that elsewhere in the record the name also appears as
“Bucaualis.” [Note: The correct spelling of the defendant's surname is
“Bucuvalas.”]

*Peria was charged with and found guilty of the offense of prosti-
tution. She has not appealed.

10a

1. We address first the defendant’s claim that the judge
erred in denying his motions for a directed verdict of not
guilty and his motion to set aside the verdict of guilty in
that the Commonwealth had failed to present sufficient
evidence from which the jury could have concluded that the
defendant was guilty of the offense charged. This conten-
tion leads us to inquire whether the evidence, read in the
light most favorable to the Commonwealth, was sufficient
to warrant a finding of guilty. Commonwealth v.
Mangula, 2 Mass. App. Ct. 785, 786 (1975).

There was evidence admitted against the defendant from
which the jury could have found the following facts. The
defendant was the president and a director of the United
Food Corporation, which does business as the Two O’Clock
Lounge in the “Combat Zone” of Boston. The defendant
also served as manager and principal representative of the
lounge with full authority to control the premises described
in the liquor license. As manager, the defendant was
usually present and in charge of the lounge during business
hours. He was present in the lounge during the events at
issue in this case.

The defendant’s managerial responsibilities included
arranging for entertainment and keeping track of all the
“girls” who were employed by the lounge. The primary
form of entertainment in the lounge was provided by
female performers who stripped and danced in the nude.
When those entertainers were not performing, they mingled
with the customers and attempted to convince them to
purchase bottles of champagne at prices ranging from $6.25
to $150. Peria was employed by the lounge as such a
performer at a salary of $100 a week.

In the late afternoon of October 14, 1976, a male
customer, one Wolfe, spoke with a barmaid in the main
room of the lounge. As the result of that conversation the

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lla

barmaid summoned Peria, who appeared wearing a white
negligee. Wolfe then had a conversation with Peria and
the barmaid, as the result of which Wolfe paid Peria $50.
She in turn gave the money to the barmaid. Peria then led
Wolfe into a room in the back of the lounge. That room
was darkened and otherwise unoccupied, as the bar located
therein was not usually in operation during the afternoon.
In a booth in that room Peria performed an act of fellatio
on Wolfe. A champagne bottle and two glasses were later
found in the booth. The bottle was partially empty, and
there was champagne in each of the glasses.

At about 4:00 p.m. two police officers attached to the
vice control unit of the Boston police department entered
the lounge and were met by the defendant. The three
proceeded to the rear of the premises and were engaged in
conversation when Peria, clad in a white negligee, came
running from the back room. About ten to fifteen seconds
later Wolfe emerged from the same room. Wolfe immedi-
ately addressed the officers and the defendant, claiming
that after the completion of the act of fellatio he had
discovered that his wallet was missing and that it had been
stolen.*

As a result of the information gathered by the officers in
this conversation, criminal complaints issued against Peria
and the defendant.

The offense defined by G. L. c. 272, § 6,‘ may be
analyzed as requiring the proof of three elements: (1) that

*Wolfe testified that he found the wallet in his pocket when he
arrived at his home.

‘General Laws c. 272, § 6, reads as follows: “Whoever, being the
owner of a place or having or assisting in the management or control
thereof, induces or knowingly suffers a female to resort to or be in or
upon such place, for the purpose of unlawfully having sexual inter-
course, shall be punished as provided in section three.”

12a

the defendant owned, managed or assisted in the manage-
ment or control of certain premises; (2) that a female was
present on those premises for the purpose of unlawfully
having sexual intercourse, and (3) that the defendant
induced or knowingly suffered the female’s presence on the
premises for that purpose. We consider the evidence intro-
duced by the Commonwealth in this case to be sufficient to
support the jury’s finding that the defendant was guilty of
the alleged offense. See Commonwealth v. Martin, 304
Mass. 320, 322 (1939).

The defendant does not seriously contend that the
Commonwealth failed to present sufficient evidence as to
the first element of the offense. There was ample evidence
of the defendant’s management and responsibility for the
lounge premises. The defendant does, however, challenge
the sufficiency of the evidence on the second element. He
argues that the Commonwealth proved only that Peria was
employed by the lounge as an entertainer and that at most
the evidence indicates Peria’s willingness to engage in sexual
activity rather than her “purpose” to be so engaged. We
do not agree. Peria’s employment as an entertainer in the
lounge does not rule out the inference that her duties also
included the performance of sexual services. Given the
type of establishment, Peria’s occupation and costume, and
her response to the barmaid’s call and subsequent perform-
ance of jellatio for payment, it was open for the jury to
determine as a matter of fact that Peria was available for
sexual intercourse with customers who desired such service.

The defendant also challenges the sufficiency of the
evidence introduced by the Commonwealth with regard to
the third element of the offense. He cites the case of
Commonwealth v. Altenhaus, 317 Mass. 270, 273 (1944),
for the proposition that the proof of knowledge required to
support a verdict of guilty in certain criminal offenses is not

owe

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13a

made out when the facts proven are as consistent with an
innocent explanation as with a guilty one. The defendant
claims that as there was no evidence that he either partici-
pated in or was aware of the transaction between Peria,
Wolfe and the barmaid, the Commonwealth’s evidence
could fairly be characterized as establishing both his ignor-
ance of the transaction and his innocence of the offense.

We regard the Altenhaus case as distinguishable on its
facts. The evidence in the present case indicates a trans-
action for sexual services performed on licensed premises,
which was undertaken openly at the main bar of the lounge
during regular business hours by two employees normally
under the direct supervision of the defendant. In view of
the apparent openness of this transaction the jury could
reasonably infer that the fifty dollars paid to the barmaid
was payment for more than champagne and that the lounge
made a profit on the sexual aspects of the transaction.
Given these and all the other circumstances in the case, the
jury could reasonably conclude that the defendant, as
manager of the lounge, was aware of and acquiesced in his
employees’ illicit sexual activities.

2. The defendant also contends that his motions for a
directed verdict of rot guilty and his inotion to set aside the
verdict of guilty should iuav. veen allowed on the ground
that the Commonwealth had failed to satisfy the require-
ment under G. L. c. 272, § 11, that “[a] person shall not
be convicted under sections two to six [of chapter 272],
inclusive, upon the evidence of one witness only, unless his
testimony is corroborated in a material particular.” We do
not agree that the quoted provision had any application in
the circumstances of this case.

The testimony of two police officers regarding their
observations of Peria’s and Wolfe’s emergence, within
seconds of each other, from the back room of the lounge

l4a

and the officers’ discovery of a bottle of champagne and
two glasses in a booth in the back room served to corrobo-
rate Wolfe’s testimony as to what transpired between Peria
_ and himself. This in turn constituted sufficient corrobora-
tion of a “material particular” of Wolfe’s testimony for the
purposes of G. L. c. 272, § 11. Cf. Commonwealth v.
Taschetta, 252 Mass. 158, 160 (1925) (testimony by defense
witnesses that defendant had taken a woman to a house in
Springfield and that she had subsequently left with him,
found sufficient in relation to G. L. c. 272, § 11, to
corroborate woman’s testimony of defendant’s conduct
while in the house in prosecution for violation of G. L.
c. 272, § 2). There was no error in the denial of the
motions.

3. The defendant argues next that G. L. c. 272, § 6, the
statute under which he was charged, is impermissibly vague
in violation of both the Fourteenth Amendment to the
United States Constitution and art. 12 of the Declaration of
Rights. He claims that the standard defined under the
statutory prohibition of a “purpose of unlawfully having
sexual intercourse” is so ambiguous as to preclude fair notice
or warning to potential offenders of the type of conduct
which is proscribed. In addition to this alleged facial
invalidity, the defendant contends that the statute is imper-
missibly vague as applied to the circumstances of this case.
He claims that in light of recent rulings that certain penal
statutes do not reach sexual conduct which occurs between
consenting adults in private, see e.g. Commonwealth v.
Balthazar, 366 Mass. 298, 302 (1974), habeas corpus
granted sub nom. Balthazar v. Superior Court, 428 F.
Supp. 425 (D. Mass. 1977), he could not have been on
notice that it was “unlawful” for Peria to engage in sexu-
al activity with Wolfe in a darkened and otherwise un-
occupied room. The defendant argues finally that the

et OTE a

a. He ar ime

l5a

term “sexual intercourse,” as employed in the statute, is
commonly understood as describing only the act of coition;
and the present construction of that term as including the
act of fellatio, which is necessary to support the defendant's
conviction in this case, was unforeseeable and is therefore in
violation of his due process rights. See Bouie v. Columbia,
378 U.S. 347, 352 (1964).

As there are no First Amendment issues involved in the
defendant’s challenge to the statute, we examine his claim
of statutory vagueness solely in relation to the facts of the
case at hand. United States v. Mazurie, 419 U.S. 544, 550
(1975). Commonwealth v. Gallant, ___. Mass. ,
(1977) [Mass. Adv. Sh. (1977) 2254, 2259]. Having done
so, we conclude that the standard set by G.L. c. 272, § 6, is
sufficiently comprehensible for the defendant to have been
on notice of the unlawfulness of his conduct in this case.
See Coates v. Cincinnati, 402 U.S. 611, 614 (1971); Com-
monwealth v. Jarrett, 359 Mass. 491, 496-497 (1971).

By performing sexual acts for hire Peria committed the
offense of prostitution.’ Sexual conduct of that nature is
manifestly unlawful. Commonwealth v. King, __. Mass.

, - (1977) [Mass. Adv. Sh. (1977) 2636, 2642-
2643]. Those privacy rights which might be recognized
with regard to certain sexual conduct engaged in between
consenting adults in private cannot be raised in defense of
the commission of prostitution on premises to which the
public has access. Id. at __ [Mass. Adv. Sh. (1977) at
2646]. The conduct of the defendant and his employees
falls squarely within the “hard core” of the statute’s prohibi-
tions. He cannot complain of the potential constitutional
dubiety of G.L. c. 272, § 6, when applied to certain border-

*See footnote 2, supra.

l6a

line situations. Commonwealth v. Orlando, __ Mass.
; (1977) [Mass. Adv. Sh. (1977) at 84, 87].

Moreover, the defendant's contention that his due process
rights were violated by the construction of the statutory
term “sexual intercourse” to include the act of fellatio is also
without merit. The meaning of the language of a statute
may be measured by common understanding and practice.
Commonwealth v. Jarrett, supra at 497. Commonwealth
v. Balthazar, 366 Mass. at 300. The term “sexual inter-
course” has commonly been employed to describe a variety
of sexual conduct, including the act of fellatio. See G.L.
c. 265, §§ 22, 23; Commonwealth v. Gallant, supra at
[Mass. Adv. Sh. (1977) at 2263] (defining “natural”
and “unnatural” intercourse under G.L. c. 265, § 23).
There is nothing before us which indicates that the act of
fellatio was previously considered to be outside the scope of
the statute. See Rose v. Locke, 423 U.S. 48, 53 (1975).
We accordingly conclude that the defendant should have
understood that his conduct was in violation of the statute.
See Colten v. Kentucky, 407 U.S. 104, 110 (1972); Com-
monwealth v. Klein, __. Mass. , (1977) [Mass.
Adv. Sh. (1977) 1393, 1405] (dictum).

4. The defendant next assigns as error several portions
of the judge’s instructions to the jury, particularly with
regard to the judge’s refusal to charge in accordance with
certain requests for instructions. After having reviewed the
charge as a whole, Commonwealth v. Pinnick, 354 Mass.
13, 15 (1968), we conclude that the judge’s instructions to
the jury were both fair and complete. As certain of the de-
fendant’s requests for instructions on the definition of the
words “unlawful sexual intercourse” were either at odds
with the law of the Commonwealth or unsupported by the
evidence in the case, the judge was correct in declining to
give them. Commonwealth v. Kleciak, 350 Mass. 679,

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17a

691-692 (1966). The remaining requests for instructions
were substantially covered in the judge’s charge. The judge
was not bound to instruct the jury in the exact language
suggested by the defendant. Commonwealth v. Aronson,
330 Mass. 453, 458 (1953). Commonwealth v. Edmonds,
365 Mass. 496, 506 (1974).

5. The defendant objects last to the judge’s ruling which
permitted one of the police witnesses to respond in direct
examination to the assistant district attorney's query: “Are
you familiar with the method of operation of the Two
O’Clock Lounge?” The judge overruled the defendant’s
objection to the question and denied the defendant’s request
that the Commonwealth be required to make an offer of
proof.’ The defendant now claims that, by allowing the
witness to respond to so broad a question, the judge made it
possible for the witness to interject prejudicial and otherwise
incompetent evidence before the jury.

Decisions as to the form and relevancy of questions in the
examination of witnesses are within the discretion of the
trial judge. Commonwealth v. Slaney, 345 Mass. 135, 142
(1962). Commonwealth v. Barras, 3 Mass. App. Ct. ___.,
(1975) [Mass. App. Ct. Adv. Sh. (1975) 193, 198]. In
view of the judge’s limitation of the scope of the question’
and his close scrutiny of the subsequent testimony by the
witness, we perceive no abuse of discretion; nor was there
prejudice to the substantial rights of the defendant resulting

*The defendant excepted only to the judge’s denial of the request for
an offer of proof.

"In response to the defendants’ objections to the question the judge
stated, “He [the witness] may testify as to his observations as to how it
is run, what takes place there, whether there are shows there, whether
there is entertainment, whether there are B-girls, all of which if he
knows he may testify.” The witness had previously testified that he had
been in the lounge “hundreds of times” pursuant to his duties as a vice
control officer.

18a

from the allowance of the assistant district attorney's ques-
tion in that form. See Commonwealth v. Greenberg, 339
Mass. 557, 580-581 (1959), and cases cited.

Judgment affirmed.

aoe me ee oo

19a
Appendix C.

COMMONWEALTH OF MASSACHUSETTS
ApPpEALS COURT FOR THE COMMONWEALTH,
At Boston, February 24, 1978.

IN THE CASE OF COMMONWEALTH vs. GEORGE
BUCAULIS, pending in the Superior Court for the County
of Suffolk.

Orperep, that the following entry be made in the docket;

viz., — Judgment affirmed.
By THE Court,

JOHN E. POWERS,
Clerk.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1062%3A1. Public record. Not legal advice.