Respondent Brief in Opposition to Petition for Writ f — United Mine Workers of America v. Price

Table of Contents.

Statement of the case

Statement of facts

Introduction

Summary of the evidence

Summary of argument

Argument

A. There is no evidence of bias on the part of the

grand jury

B. Conduct of the voir-dire examination of trial

jurors by the judge does not raise a constitu-

tional question

C. There was abundant ground for founding ter-

ritorial jurisdiction in Massachusetts and venue

in Suffolk County

D. No constitutional question is raised by the ac-

tion of the Supreme Judicial Court in overruling

a prior decision which had clearly misapplied a

state statute concerning venue

E. The evidence was sufficient to support the con-

victions

F. The petition requests that certiorari issue to

the wrong court

Conclusion

Appendix I

Table of Authorities Cited.

Cases.

Beazell v. Ohio, 269 U.S. 167, 46 S.C. 68

Beck v. Washington, 365 U.S. 866

aw &

13

15

15

19

17

li TABLE OF AUTHORITIES CITED

Beck v. Washington, 369 U.S. 541 16, 17, 18, 19

Bouie v. City of Columbia, 378 U.S. 347,84 S8.C.1697 25, 28

Buchalter v. New York, 319 U.S. 427 20, 25, 29

Commonwealth v. Friedman, 188 Mass. 308 26, 27, 28

Commonwealth v. Geagan, 339 Mass. 487, 159 N.E.

2d 870; cert. den. 361 U.S. 895, 80 S.C. 200, 4 L. Ed.

2d 152 21

Commonwealih v. Green, 302 Mass. 547 22

Commonwealth v. Iannello, 344 Mass..723 22, 26n.

Commonwealth v. Kelley, 184 Mass. 320 22, 26n.

Commonwealth v. King, 202 Mass. 379 22, 26n.

Commonwealth v. Mulrey, 170 Mass. 103 30

Commonwealth v. Parker, 2 Pick. 550 22

Commonwealth v. Parker, 165 Mass. 526 24

Commonweatlh v. Quin, 5 Gray 478 22

Commonwealth v. Rand, 7 Met. 475 24

Cook v. United States, 138 U.S. 157, 11 S.C. 268 25

Crocker v. Justices of the Superior Court, 208 Mass.

162 22

Darcy v. Handy, 351 U.S. 454 19

Frank v. Mangum, 237 U.S. 309, 35 S.C. 582 28n.

Geagan v. Gavin, 292 F. 2d 244; cert. den. 370 U.S.

903, 82 S.C. 1247, 8 L. Ed. 2d 399 21

Geagan v. Gavin, 181 F. Supp. 466 21

Geagan v. Massachusetts, 361 U.S. 895, 370 US.

903 21n.

Gray v. Cook, 135 Mass. 189 30

Gut v. State of Minnesota, 9 Wall. 35 25

Ross v. Oregon, 227 U.S. 150, 33 S.C. 220 28n.

SEEDS AF I ts Bi BS! TRS BEL ae OL wi ES a BU Pw ot Aine

TABLE OF AUTHORITIES CITED iii

Statutes, Erc.

U.S. Constitution, Fifth Amendment 19

Mass. Constitution, Declaration of Rights, art. 12 17n.

G.L. (Ter. Ed.) ¢. 234, § 28 14, 19, 20

G.L. c. 266

§ 30 23n., 26

§ 33(1) 22, 23, 26n.

§ 34 26n.

G.L. (Ter. Ea.) ¢. 277

§ 5 18

§ 39 22

§ 41 22

§ 58 24

§ 59 24n., 26, 28

§ 79 22

G.L. ec. 278, §§ 33A-G 2, 30

G.L. c. 278, § 33E 30

Mass. Acts of 1958, c. 606 6n.

Federal Rules of Criminal Procedure, Rule 24(a) 20n.

Rules for the Regulation of Practice before the Su-

preme Judicial Court

Rule 13 27

Rule 16 26

aR NOT

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Supreme Court of the United States.

Ocroser TERM, 1964.

No. 799.

RICHARD K. GORDON ET AL.,

PETITIONERS,

v.

COMMONWEALTH OF MASSACHUSETTS,

RESPONDENT.

RESPONDENT’S BRIEF IN OPPOSITION TO PETI-

TION FOR WRIT OCF CERTIORARI.

Statement of the Case.

On May £1, 1962, two indictments were returned by a

grand jury sitting in Suffolk County, Massachusetts, which

charged petitioners’ and two other defendants’ with lar-

‘1 Both petitioners are lawyers and members of the Massachusetts

bar. Petitioner Gordon is also a District Couff judge in Essex

County. Gordon has suspended himself from his judicial duties

pending the outcome of this case.

2The other two defendants were George Lewis Brady and

Francis W. Kiernan. Brady has nct been tried on the indictments

involved in this petition (or on other indictments returned at the

same time against Brady and others, on which there have been

two convictions and one acquittal), because of the trial court’s

finding that Bra'y was incompetent to stand virial. Kiernan was

convieted with petitioners in this proceeding but has not joined

in this petition for certiorari.

2

ceny of $450,000 from the Massachusetts Parking Authority

and with conspiracy to commit larceny from the Massa-

chusetts Parking Authority.

Verdicts of guilty on both indictments were returned

on April 16, 1963. Sentences were imposed on April 22,

1963. On the same day the trial judge ordered that execu-

tion of the sentences be stayed, pending appeal of the con-

victions.

Appeals were taken to the Supreme Judicial Court of

Massachusetts under Mass. G.L. c. 278, $4 33A-33G,‘ to

which the case had been ordered made subject by the trial

judge (R. 5).5 On October 5, 1964, the convictions were

afhrmed by the unanimous decision of the Supreme Judicial

Court.

Thereafter the Commonwealth moved in the Superior

Court (the trial court) for an order revoking the stays of

execution; and petitioners moved in the same court for an

order extending the stays of execution, pending petitions

for certiorari to this Court. After hearing, the Common-

wealth’s motion was allowed; the petitioners’ motions were

3On the larceny indictment petitioners and Kiernan were sen-

tenced to terms of two and one-half to three years at the Massa-

chusetts Correctional Institution at Walpole, Massachusetts. On

the conspiracy indictment they were sentenced to terms of two

and one-half years at the Suffolk County House of Correction,

to be served from and after the expiration of the sentences on

the larceny indictment. ,

* These sections are the so-called ‘‘felony appeals’’ statute, under

which the record on appeal includes a transcript of all the testi-

mony at the trial aad all the exhibits admitted in evidence.

5 References to the Summary of Record will be made by the

letter ‘‘R.’’ followed by the page number. References to the

transcript of testimony will be made by the letters ‘‘Tr.,’’ fol-

lowed by the page number. Exhibits will be referred to as ‘‘ Ex.,’’

followed by the exhibit number. References to the opinion of the

Supreme Judicial Court, which is Appendix A to the petiticen, will

be made by the letters ‘‘ App. A,’’ followed by the page number.

3

denied ; and petitioners were ordered to commence serving

their sentences forthwith.

Thereupon, petitioners applied to the Supreme Judicial

Court for stays of execution, pending petitions for cer-

tiorari to this Court. After hearing, these appiications

were denied.

Petitioners then applied to this Court for stays of exe-

cution. This application was denied by Justice Goldberg

on November 16, 1964.

Tk petition for certiorari was entered in this Court on

December 31, 1964.

Statement of ‘Facts.

INTRODUCTION.

There was evidence in this case that a conspiracy was

formed early in 1959 by George Lewis Brady, chairman of

the Massachusetts Parking Authority (Authoritv), and

William F. Thompson, chairman of the board of The Foun-

dation Company (Foundation), who was interested in ob-

taining for Foundation the contract to construct the garage

which the Authority intended to build under the Boston

Common. The object cf the conspiracy was to steal money

from the Authority.

Shortly after the conspiracy was formed, it was joined

by Maurice A. Broderick, a New Hampshire lawyer and

brother-in-law of Brady, and later by Kiernan and by peti-

tioners Gordon and Simmers.

The crime contemplated by the conspiracy was to be

committed in two stages: first, Foundation, which would

receive the construction contract for the garage, was to

receive a payment for work claimed to have been done by

Foundation which in fact had not been done; second, Foun-

dation was to pay the money over to Brady and the other

4

conspirators under the guise of legitimate payments for

(a) a finder’s fee, (b) an attorney’s fee and (c) a sub-

contract for various items of work in the construction of

the garage. The total kick-back to be made by Foundation

came to $405,000.

After the mechanics of the conspiracy had been agreed

upon, the Authority and Foundation entered into a contract

for the construction of the garage, which provided in part

that an initial payment was to be made to Foundation, for

services rendered by Foundation before the signing of the

contract, in the amount of $450,000 (in fact, the work done

by Foundation before the signing of the contract was less

than 10% of this amount). The construction contract was

signed, among others, by Brady, after it had been approved

by Kiernan, who was acting as consulting engineer (re-

ferred to as the ‘‘ onstruction engineer’’) for the Author-

ity. The $450,000 was paid to Foundation by the First

National Bank of Boston (First National), acting as trus-

tee of the Authority’s construction fund, after the con-

struction contract had been signed and after First National

had received a requisition for this payment signed by

Brady and certified by Kiernan.

After it received the $450,000, Foundation made the

payments previously agreed upon to members of the con-

spiracy. A finder’s fee, so-called, of $145,000 was paid to

Kiernan (after passing through two straws furnished re-

spectively by Broderick and by petitioner Gordon) and was

then paid by Kiernan in whole or in part to Brady. A

lawyer’s fee, so-called, of $100,000 was paid to petitioners

Gordon and Simmers. Neither Gordon nor Simmers per-

formed legal services for Foundation. Similarly, $65,000

was paid by Foundation, under a so-called subcontract, to

Granite State Realty and Construction Co., Inc. (Granite

State), a New Hampshire corporation organized by Brod-

erick. Granite State did not perform any work under the

5

so-called subcontract (indeed, Granite State was a paper

corporation only, without any employees, equipment or

other assets). The money paid ostensibly to Granite State

ended up it the hands of petitioners Gordon and Simmers

(App. A, 1160-1169).*

The first step in diverting the Authority’s money to peti-

tioners Gordon and Simmers and to other members of the

conspiracy was the payment by the Authority of $450,000

to Foundation. Here is where the impact of the crime was

felt. It was represented by members of the conspiracy

that this payment was made to compensate Foundation for

work done before the signing of the contract. However,

there was evidence that this representation was false in two

respects: first, the work done by Foundation before the

signing of the contract was only a small fraction of this

amount; second, the purpose of this payment (at least to

the extent of $405,000) was to place money in the hands of

Foundation so that Foundation could pay the money over

to other members of the conspiracy.

SUMMARY OF THE EvIpENCE.

In view of the fact that the petition raises questions of

the sufficiency of the evidence to support the convictions

(on the theory that problems of due process and ex post

facto laws under the United-States Constitution are raised

thereby), this brief will refer to the parts of the evidence

which the Commonwealth believes are material.

®The total kick-back agreed upon originally came to $405,000,

as follows: $150,000 for the finder’s fee ; $100,000 for the lawyer’s

fee; $155,000 for the subcontract (App. A, 1162-1163). The

amount actually paid was $310,000, as follows: $145,000 for the

finder’s fee; $100,000 for the lawver’s fee; $65,000 for the subcon-

tract. The finder’s fee was discounted $5,000 for early payment

(App. A, 1167, n. 15), and $90,000 of the subcontract was never

paid (App. A, 1169, n. 16).

6

Starting in the spring of 1959 a serie: of conversations

began between Brady (who had been appointed recently as

chairman of the Authority)’, officers of Foundation and

others, for the purpose of negotiating terms under which

Foundation, in return for the award of the construciion

contract for the garage, would pay a kick-back to Brady

and to others (App. A, 1161-1163).*

After the terms had been agreed upon, the arrangements

for payment of the kick-back were spelled out in three pre-

dated letters signed by the president of Foundation on

February 20, 1960. The first ietter, predated to May 4,

1959, was addressed to a man named Edward Plourde and

represented that Foundation would pay Plourde a finder’s

fee for work obtained in Massachusetts through Plourde’s

efforts (App. A, 1162; Ex. 16; Tr. 475-476). The amount

of the finder’s fee for the garage contract, according to the

formula contained in this letter, was $150,000. However,

Piourde had done nothing to bring the Parking Authority

and Foundation together.® In fact, he was acting as a straw

for Brady (App. A, 1162; Tr. 470-472; Tr. 686-694; Tr.

1007-1022). The second letter, predated to June 17, 1959,

was addressed to Broderick and provided that Foundation

would pay him $100,000 for legal services rendered for the

garage job and other projects (App. A, 1162; Ex. 17; Tr.

476-477). In fact, no legal services were to be rendered

by Broderick. The third letter, predated to February 11,

1960, was addressed to Granite State and recited that

7™The Authority was created in 1958 by the Massachusetts legis-

lature. Its purpose was to build, operate and maintain a garage

under Boston Common (App. A, 1160-1161, 1173-1175). See Mass.

Acts of 1958, e. 606; Fix. 6; Tr. 324-329.

‘Tr. 915-925; Tr. 1040-1049; Tr. 1086-1104; Tr. 464-475; Tr.

653-658 ; Tr. 692-694; Exs. 15-17; Tr. 475-478.

® Plourde had been enlisted by Broderick.

PRS SE BITRE, RBI 8 4 : S eB cs alte iA

7

Granite State would receive a subcontract from Foundation

for four work items in the construction of the garage, total-

ling $155,000 (Ex. 15; Tr. 477-478). In fact, Granite State

had no assets and was incapable of performing any work

(App. A, 1163).”

On February 23, 1960, three days after the signing of the

predated letters, the Authority held a meeting at its office

in Boston, at which a series of resolutions were adopted.

One resolution provided for the appointment by the Au-

thority of Muzzillo and Tizian (represented by defendant

Kiernan throughout the construction of the garage) as

“‘construction engineer’’ to represent the Authority in ac-

cordance with the terms of the so-called ‘‘Bond Resolu-

tion’’ (Ex. 6; Tr. 324-331), which was adopted at the same

meeting. In géneral, it was the duty of the construction

engineer (Kiernan) to ‘‘approve the design, plans and spe-

cifications of the Project [Boston Common Garage] prior

to construction of the Project and, on behalf of the Au-

thority [to] supervise the construction of the Project and

report weekly to the Authority on the compliance of such

construction with the design, plans and specifications for

the Project’? (Ex. 6, § 709; Tr. 324-331). The Bond

Resolution further provided that no obligation incurred

for work done in the construction of the garage could be

paid without a certificate, signed by the construction engi-

neer, certifying that ‘‘such work was actually performed”’

(Ex. 6, § 406[c]; Tr. 324-331).

Another resolution, adopted at the same meeting, ap-

proved the form and substance of a contract between the

Authority and Foundation. This contract provided that

6 per cent ($450,000) of the total contract price of $7,500,000

was to be paid to Foundation at the signing of the contract

“‘as payment for architectural und engineering services

©Tr. 463-464, 478-479, 531-534.

8

heretofore rendered by the contractor in connection with

the project’’ (App. A, 1163-1164; Ex. 7; Tr. 332-335).

(Emphasis added.) In fact, at the time the contract was

signed by the Authority and Foundation (March 2, 1960),

the work done by Foundation came only to $35,246.44, less

than 10 per cent of the initial payment"' (App. A, 1165;

Tr. 1359-1394; Exs. 71, 71-A; Tr. 1373-1379, 1393-1394,.

1415-1416).

The various resolutions * adopted at the meeting of the

Authority on February 23, 1960, were all signed by Brady.

In addition, the proposed contract with Foundation, ap-

proval of which was voted at this meeting, had been ap-

proved previously by Kiernan in writing (App. A, 1163;

Ex. 7; Tr. 332-335).

Once the various resolutions had been approved by the

Authority, arrangements could be made to consummate

the sale of the Authority’s bonds, to sign the construction

contract and to make the payment of $450,000 to Founda-

tion which the construction contract called for. Accord-

ingly, it was agreed that the closing, so-called, would be

held on March 2, 1960, at the Chemical Bank, New York

Trust Company (Chemical Bank), in New York City.

Present at the closing; were Brady, other members of the

Authority, Kiernan, representatives of Foundation, repre-

sentatives of the underwriter John Nuveen & Co. (Nuveen)

11The difference between the initial payment to Foundation of

$450,000 and the cost to Foundation of $35,246.44 at the time the

contract was signed is $414,753.56, slightly in excess of the $405,000

which Foundation had agreed to pay as a kick-back.

12Other resolutions were adopted at this meeting, including a

resolution approving a so-called ‘‘ Purchase Contract’’ under which

John Nuveen & Co. was to act as the underwriter for the sale of

the Authority’s bonds (Tr. 368-371; Tr. 1486-1498; Exs. 10, 11;

Tr. 3262-371) and a resolution appointing First National as con-

struction-fund trustee (Ex. 9; Tr. 343-344).

Pe Ha ECM

ee

9

and representatives of various banks including First Na-

tional (which was to act as trustee of the 4uthority’s con-

struction fund). At this meeting the construction contract

was signed by Brady, Kiernan and others. It provided

(as did the contract previously approved in Boston by

Brady and Kiernan) that ‘‘Six per cent [i.e., $450,000] of

the total of the above amount [i.e., the $7,500,000 contract

price] shall be paid to the contractor on the effective date

of this contract as payment for architectural and engineer-

ing services heretofore rendered by the Contractor in con-

nection with the project.’’'* (Emphasis added.) Aftcr the

construction contract had been signed, Brady delivered the

Authority’s bonds to Nuveen and received in return two

checks, one of which (for $7,732,800) was endorsed over to

First National and then deposited in Chemical Bank, to the

account of First National as trustee of the Authority’s

construction fund. Thereupon requisition 1 to First Na-

tional was signed by Brady on behalf of the Authority. It

contained two payment items, one of which was for $450,000

to Foundation in ‘‘Payment for architectural and engi-

neering services as required by Construction Contract.”’

(Emphasis added.) Attached to this requisition was a cer-

tificate signed by Kiernan (acting as construction engineer

for the Authority) which recited that the work referred to

in the requisition had been ‘‘actually performed.’”’? (Em-

phasis added.) As a consequence of this requisition and

the attached certificate,* First National paid over $450,000

to Foundation (App. A, 1165-1166).

As soon as the $450,000 had been paid to Foundation (by

reason of the various misrepresentations concerning the

1 As pointed out previously, the work actually done by Founda-

tion at the time the contract was signed came to $35,246.44.

“Tr. 1163-1167, 1275, 1327-1331; Ex. 6 (§ 406[c]); Tr. 324-

331.

——e———

10

purpose of the payment), the second stage of the plan could

be put into operation: i.e., the kick-back payments by Foun-

dation to Brady and others, in the guise of a finder’s fee,

a lawyer’s fee and a subcontract.

Accordingly, the finder’s fee was paid by Foundation to

Plourde, who was acting as a straw for Brady (App. A,

1162). On the day of the closing, after Foundation had re-

ceived and deposited the check for $450,000," Foundation

gave Plourde a check for $100,000. The following day,

March 3, Plourde deposited this check in an account in his

name at the Manufacturers Trust Company (Manufactur-

ers Trust) in New York City (App. A, 1166).

On March 24, 1960, Plourde received a second check from

Foundation, this time for $45,009,’* which he also deposited

in his account at Manufacturers Trust (App. A, 11€7).”

On the same day he had a meeting in a New York hotel

with Brady, Broderick and Kiernan, at which there was an

argument about how the money was to come out of

Plourde’s account. Broderick testified as follows: ‘‘Mr.

Brady wanted Plourde to give him the money, the finder’s

money in cash, and we refused, and I told Brady that I

would not permit Plourde to do it. Brady then suggested

or Brady then said that the money should be turned over by

Plourde to [petitioner] Richard C. Simmers’’** (Tr. 501).

15 The $450,000 was deposited by Foundation during banking

hours on March 2, 1960 (Ex. 80; Tr. 1406-1408). Plourde was not

given the $100,000 check until the late afternoon or evening of

March 2, after banking hours (Tr. 480-483, 703).

16The total of the finder’s fee was reduced from $150,000 to

$145,000 because of early payment of the second installment (App.

A, 1167, n. 15).

17 Ex. 26; Tr. 492-507; Tr. 721-743.

18 The following appears as footnote 14 in the opinicn of the Su-

preme Judicial Court (App. A, 1167):

‘“The rather abrupt appearance on the scene of Simmers, and

shortly thereafter of Gordor and one Craven, as replacements for

LSD GS ei SAD

1]

During the course of this meeting Brady signed a paper

which said: ‘‘ Maurice [i.e., Broderick] pay proceeds of the

check to [peiitioner] Richard C. Simmers’’ (Ex. 19; Tr.

504-507). In response to this instruction, Plourde drew

two checks payable to Simmers, totalling $140,000. These

checks were destroyed by Kiernan at a later meeting in

New York, on April 1, 1960, when the finder’s fee was

finally removed from Piourde’s account (Tr. 728-743).

Or April 1, 1960, petitioners Gordon and Simmers, who

were law partners (App. A, 1167; Tr. 893, 895), and John

J. Craven arrived in New York City and met Brady, Kier-

nan and Plourde. Craven, who, like Plourde, was to serve

as a straw in transferring the finder’s fee, had been enlisted

by Gordon (Tr. 892-894). Thereupon both groups, with

the exception of Brady, proceede¢ to Manufacturers Trust,

where Plourde had deposited the finder’s fee. On the way,

Simmers purchased a briefcase in which $140,000 in cash

was later carried from the bank (Tr. 894-895). When they

arrived at Manufacturers Trust, Plourde drew a check to

Craven for $140,000,’ which was then cashed. When the

bank produced the money (consisting of a hundred $1,000

bills and eighty $500 bills), Gordon, Simmers and the

others retired to a small anteroom, where the money was

counted (Tr. 756-759, 898-900). When the counting was

complete, Simmers reached over and put the money in the

briefcase which he had bought just before entering the

Broderick and Plourde, is in part probably accounted for by a

dispute between Broderick and Brady about Plourde. Brady

wanted the ‘finder’s fee’ to come to him from Plourde in cash,

but Broderick did not wish to have Plourde left, as a result, with

an income tax problem. Broderick also told Brady that the com-

pensation which Brady proposed to give to Plourde for acting as a

straw was too small.’’

1® The difference of $5,000 between the $145,000 paid as a finder’s

fee and the $140,000 check drawn to Craven represents Plourde’s

fee for serving as a straw (App. A, 1167).

12

bank (Tr. 900). Kiernan, accompanied by Plourde, then

carried the briefcase uptown, where they met Rrady; and

Kiernan and Brady counted the money again. When this

counting was complete, the empty briefcase was given to

Plourde. Later that day, Gordon gave Craven one of the

$500 bills as payment for his assistance. In this manner

the finder’s fee paid to Plourde by Foundation was re-

moved from Plourde’s account and paid either to Brady or

partly to Brady and partly to other members of the con-

spiracy (App. A, 1167-1168).

The second means for accomplishing the kick-back pay-

ments was the so-called attorney’s fee. In April of 1960,

in accordance with the predated attorney’s fee letter

(signed at The Foundation office on February 20, 1960),

a check for $50,000, in payment of the first installment of

the attorney’s fee, was sent to Broderick. However, by

this time there had heen a change of plan: Gordon, and not

Broderick, was to be the recipient of the attorney’s fee.

As a result, Broderick returned the check for $50,000 to

Foundation with a letter in which he assigned his interest

in the fee agreement to Gordon (Ex. 21; Tr. 518-523, 966).

Subsequently Gordon received three checks from Founda-

tion, totalling $100,000, in full payment of the attorney’s

fee (Exs. 42-44; Tr. 957-959). These checks were cashed

or put through for collection. Part of the proceeds went

to Gordon, and part (including five $10,000 bills) went to

Simmers (Tr. 1527-1551). Neither Gordon nor Simmers

performed legal services for Foundation” (App. A, 1168).

20 Each of the following witnesses (everyone who would havé

occasion to know) testified that to his knowledge neither Gordon

nor Simmers performed legal services for Foundation: Shea, at-

torney for Foundation (Tr. 1113-1114); Gallagher, attorney for

Foundation (Tr. 1137); Thompson, chairman of the board of

Foundation (Tr. 1023-1028) ; Ferrick, attorney for the Avthority

(Tr. 1559-1561).

13

The last device for making the kick-back payments was

the so-called subcontract. On June 8, 1960, Foundation

sent a check for $40,000 to Granite State, pursuant to a

fictitious purchase order, ostensibly for the construction

of four construction buildings at the garage site (Ex. 45;

Tr. 959-960). On March 3, 1961, Foundation sent another

check to Granite State, this time for $25,000, ostensibly for

ths construction of fences (Ex. 78; Tr. 1401-1402; Ex. 46,

Tr 959-960). No work was done by Granite State in return

for these payments (Tr. 1452-1454). In fact, Granite State

was only a paper corporation, with no tangible assets (Tr.

463-464, 478-479, 531-534). The $65,000 paid to Granite

State went to Gordon and Simmers (Tr. 1504-1531). Fic-

titious bills of Granite State in support of these payments

were sent by Gordon and Simmers to Fourdation (Ex. 76;

Tr. 1395-1399; Ex. 78; Tr. 1401-1402). See App. A, 1168-

1169.

By these means the kick-back payments were made by

Foundation, in accordance with the understanding when

the conspiracy was formed.

Summary of Argument.

A. There is no merit in petitioners’ contention that the

grand jury was not impartial. There is no evidence of bias

on the part of any grand juror against either petitioner or

any other defendant, and there was nothing inflammatory

or unfair in the newspaper stories referred to in the Sum-

mary of Record. The impartiality of the grand jurors is

assured by the oath which they take and by their random

selection to hear a wide variety of cases (all felony prose-

cutions in Massachusetts must be initiated by grand-jury

indictment).

B. There is no merit in petitioners’ contention concern-

ing possible bias on the part of the trial jury, since the trial

l4

judge took full precautions to insure that the jurors chosen

would be indifferent. No question under the United States

Constitution is raised by Macs. G.L. (Ter. Ed.) c. 234, § 28,

which permits the trial court, in its discretion, to conduct

the voir dire examination of prospective jurors itself, or

to delegate the examination to counsel.

C. There was abundant ground for founding territorial

jurisdiction in the Commonwealth cf Massachusetts and

venue in Suffolk County. The initial false pretenses. which

culminated in the payment of Authority money to Founda-

tion, took place in Boston. The Authority, First National

(trustee of the construction fund) and the garage itself are

located in Boston. Although the $450,000 was transferred

from the Authority to Foundation in New York City, part

of the proceeds of the larceny was later brought into Mas-

sachusetts and deposited in banks in Lawrence and An-

dover.

D. No question is raised under the United States Con-

stitution by the action of the Supreme Judicial Court in

overruling a previous decision which had clearly miscon-

strued the plain meaning of a venue statute for false pre-

tenses. Even if the action of the court amounted to a

change in the rule of venue, instead of the correction of an

erroneous construction adopted previously, no question

of an ex post facto law would be presented; nor would this

result so violate the fundamental principles of legal pro-

ceedings as to constitute a denial of due process. In any

event, petitiomers waived this question by failing to argue

it before the Sapreme Judicial Court.

E. In section V of petitioners’ Reasons for Granting

the Writ it is contended that the evidence was insufficient to

establish various elements of the crimes of which peti-

tioners were convicted (on the theory that questions of

due process and ex post facio laws aré raised thereby).

However, the evidence was sufficient to support the convic-

15

tioas on each indictment. Even if we assume petitioners’

contention arguendo, the matters raised would be questions

cf state law only and would not present questions under

the United States Constitution.

F. The petition requests that certiorari issue to the

wrong court. In felony prosecutions in Massachusetts,

judgme.. is entered in the Superior Court. The taking of

an appeal does not transfer the case to the Supreme Ju-

dicial Court, but only the questions of law which are raised.

The rescript from the Supreme Judicial Court does not rep-

resent a judgment, but only a direction as to the judgment

to be entered in the Superior Court.

Argument.

A. Tuere ts No Evwence or Biss oN THE Part oF THE

Granp Jury.

Section I of petitioners’ Reasons for Granting the Writ

has to do with the news reporting concerning this case

and its possible effect on the deliberations of the grand

jury. In their argument petitioners assume that the news

reports caused the grand jurors to be prejudiced, and they

say that a question of due process thereby is raised.

However, the only reference to the allegedly prejudicial

publicity in this section of the petition appears at the top

of page 28, as follows: ‘‘In the instant case, the headlines

printed in the Summary of the Record (R. 40-44, 80-90, 159-

162)" show that the publicity emanated from the office of

the Attorney General.’’ In the first place, an examination

of the pages referred to in the Summary of Record demon-

strates that the words just quoted are not a correct state-

21The three different sections of the Summary of Record re-

ferred to consist principally of duplications of the same newspaper

leads.

16

ment of fact; there is little if anything in these pages to

show that publicity ‘‘emanated froin the office of the At-

torney General.’’** Moreover, there is no mention of either

petitioner by name in these newspaper leads, prior to the

return of the indictments. Nor is there any statement or

inference in these newspaper leads, prior to the return

of the indictments, that either petitioner was guilty of a

crime. Therefore there is no support in ihe record for the

contention that pre-indictment publicity was prejudicial to

petitioners.

In Beck v. Washington, 369 U.S. 541, certiorari was

granted on the question, among others, of whether there

22'The newspaper leads which would appear to have come from

the office of the Attcrney General are the following:

‘a) ‘‘Garage Board warned of grand jury action,’’ ‘‘Me-

Cormack (then Attorney General) demands files,’’ Boston Herald,

March 26, 1962 (R. 42, 82, 161). This statement appeared at the

beginning of the investigation, more than a month before the grand

jury was convened (May 3, 1960) (R. 86) and more than two

months before the return of thé indictments (May 31, 1960) (R.

90, 162). There is nothing in this statement prejudicial to either

of the petitioners or to anyone else. Certainly it was proper for

the Attorney General to call upon the Authority to produce its

records for examination by his staff before the matter was pre-

sented to the grand jury.

(b) ‘‘MeCormack says thousands paid, no questions asked,

garage deals ‘fantastic’,’’ Boston Herald, March 30, 1962 (R. 43,

82, 161). This statement also was made at the beginning of the

investigation, more than a month before the grand jury was con-

vened and more than two months before the return of the indict-

ments. The statement does not refer to the petitioners or to any-

one else by name, and it does not accuse anyone oi 4 crime.

(c) ‘‘Furevlo (former governor of Massachusetts) given clean

bill by McCormack,’’ Boston Herald, Apri! 10, 1962 (R. 43, 84,

162). Obviously this statement was not prejudicial to petitioners.

(d) ‘‘Brady apologizes for statements McCormack tells ex-

garage head he could be defendant,’’ Boston Globe, May 14, 1962

(R. 88). This statement by McCormack (not prejudicial to peti-

tioners) was in reply to inflammatory statements by Brady

(R. 88): ‘*Brady faces contempt action for blast at grand jury’’;

‘*Brady apologizes for calling garage probe ‘white wash’.’’

17

was a requirement under the United States Constitution

that state grand juries be impartial (365 U.S. 866). On

consideration of the case it was decided that there was no

showing of prejudice (therefore, the Court did not reach

the question on which certiorari was granted).

If the newspaper and other publicity in Beck v. Wash-

ington did not support a claim of prejudice, no such claim

can be made in the present case. In the Beck case the

defendant had been summoned before the Select Committee

on Improper Activities in the Labor or Management Field

of the United States Senate and had beci questioned,

among other things, about his dealings with union funds.

On some 210 occasions, in reply to questions from the com-

mittee, Becx invoked his privilege against self-incrimina-

tion. These hearings, and Beck’s refusal to testify, were

widely publicized, especially in Kings County in Washing-

ton, where the grand jury that indicted Beck was convened.

Less than three weeks before this grand jury was con-

vened, Beck was indicted by a federal grand jury for tax

fraud; and this fact also was widely publicized. Further-_

more, the chairman of the Senate committee made this

statement, while the state grand jury was deliberating:

‘‘The Committee has not convicted Mr. Beck of any crime,

although it is my belief that he has committed many crim-

inal offenses.’

It was further contended in the Beck case that the state

court had not taken sufficient precautions to insure that

longer mandatory, although it may be restorted to at the discretion

of the prosecution (generally when the subpoena power is required

for the investigation). Therefore, in Washington grand jurors

are convened to hear a particular case and may be instructed

beforehand with respect to that case. In Massachusetts, however,

all felony prosecutions must be initiated by grand jury indictment

(article 12 of the Declaration of Rights of the Massachusetts Con-

18

viewing the procedure for selecting the grand jury, this

Court concluded that there had been no showing of bias.

In the present case we submit, first, that the pre-indict-

ment publicity (certainly less damaging than in the Beck

case) cannot be considered prejudicial; second, we say

that the procedure for selecting the grand jury (as this

Court found to be true in the Beck case) insured that the

grand jury would be free from bias. Each grand juror in

the present case took the following oath, as required by

Mass. G.L. (Ter. Ed.) ¢. 277, $5:

‘‘You, as grand jurors of this inquest for the body

of this county of (Suffolk), do solemnly swear that you

will diligently inquire, and true presentment make, of

all such matters and things as shall be given you in

charge; the commonwealth’s counsel, your fellows’ and

your own, you shall keep secret; you shall present no

man for envy, hatred or malice, neither shall you leave

any man unpresented for love, fear, favor, affection

or hope of reward; but you shall present things truly,

as they come to your knowledge, according to the best

of your understanding; so help you God.’’

Moreover, because this grand jury was selected at ran-

dom for general grand jury service, and without forewarn-

ing that they would hear this case, it is unlikely that they

had formed preconceived notions as to the guilt or inno-

cence of petitioners, or of anyone else who was later named

in the indictments. Ou the other hand, there is a danger

in the particularity of the instructions given to the grand

stitution). Therefore in Massachusetts grand juries are convened

from time to time in the various counties, to hear whatever cases

may be presented while they are sitting. Since the court does not

know in advance what cases will be presented, Massachusetts grand

juries are given general instructions and are not instructed about

particular cases.

19

jurors in the Beck case, as this Court recognize® In reply

to the defense argument that the Washington court failed

to instruct the grand jurors about the Fifth Amendment, or

to admonish them to disregard news reports, this Court

said (369 U.S. 541, 548) :

‘Discussion along such lines might w+!! have added

fuel to the flames which some see here.’

It should be borne in mind that there is no evidence or

allegation of prejudice on the part of any particular mem-

ber of the grand jury. As this Court said in Darcy v.

Handy, 351 U.S. 454, 462:

‘*. , . it is not asking too much that the burden of

showing essential unfairness be sustained by him who

claims such injustice and seeks to have the result set

aside, and that it be sustained not as a matter of specu-

lation but as a demonstrable reality.’’

B. Conpuct or THE Vorr-Dire ExamInaTION or TRIAL

JURORS BY THE JUDGE DoEs Nor Raise a CoNnsTITUTIONAL

QUESTION.

The next matter raised by petitioners has to do with the

voir dire questioning of prospective trial jurors. Mass.

G.L. (Ter. Ed.) c. 234, § 28, provides in part as follows:

‘*. , . the court shall, or the parties or their attor-

neys may under the direction of the court, examine

on oath a person who is called as a juror therein, to

learn whether he is related to either party or has any

interest in the case, or has expressed or formed an

opinion, or is sensible of any bias or prejudice,

therein .. .”’

20

In this case the trial judge asked all prospective jurors

the questions required by the cited statute and other ques-

tions that were suggested by the responses which he re-

ceived. As the Supreme Judicial Court said (App. A,

1159): ‘*The judge . . . interviewed each juror separately

in open court, informed each of the essentials of the indict-

ments, inquired of each as to the matters embraced in

G.L. c. 234, § 28, so far as relevant, and in addition pro-

pounded, as the particular situation commended, additional

inquiries, including some suggested by counsel. In all

respects the judge was meticulous to insure the empanelling

of a jury free from bias.’’ Each person selected for the

jury had stated, in reply to questions put by the trial judge,

that he or she had no preconceived opinion as to the in-

nocence or guilt of the petitioners. Anyone expressing

bias or preconceived notions of guilt or innocence was ex-

cused by the trial judge.

The petitioners’ position as to this matter, apparently,

is that conduct of the voir dire examination of prospective

jurors by the trial judge, instead of permitting this ex-

amination to be conducted by defense counsel, is a denial

of due process. This position, we submit, is without merit.

The procedure adopted by the trial judge has long been

permissible in Massachusetts (App. A, 1159). When a

trial judge questions the jurors conscientiously to make

sure that they are free from bias, as the trial judge did

in this case, it cannot be said that his refusal to permit

the examination to be conducted by counsel so violates the

fundamental principles of legal proceedings as to consti-

tute a denial of due process. Buchalter v. New York, 319

U.S. 427.*

24 Nine other states and the Federal Rules of Criminal Procedure

(Rule 24[a]) have provisions similar to that of Massachusetts con-

cerning the voir dire examination of jurors (Appendix D to the

Petition, pp. 69-73)*

21

The same question was raised in Commonwealth v.

Geagan, 339 Mass. 487, 159 N.E. 2d 870 (1959); cert. den.

361 U.S. 895, 80 S.C. 200, 4 L. Ed. 2d 152 (1960). After

the petition for certiorari had been denied by this Court,

following the state court proceedings, the defendant in

Commonwealth v. Geagan raised the same question again,

among others, in a habeas corpus proceeding in the Fed-

eral District Court. Geagan v. Gavin, 181 F. Supp. 466

(1960). In denying the petition for habeas corpus, Wyzan-

ski, J., said, concerning the voir dire examination of the

prospective jurors (which was substantially the same as

that in the instant case), at page 474:

‘‘Nor does this Court regard the actual questions put

by Judge Forte as inadequate. They covered not only

the grounds specified by Mass. G.L. (Ter. Ed.) ¢. 234

§ 23, but also other points. They were calculated to

discover whether a juror was free from prejudice

caused by pre-trial publicity. These questions satisfied

the Massachusetts Supreme Judicial Court and they

satisfy the demands of the due process clause.’’

The decision of the District Court was affirmed on appeal,

Geagan v. Gavin, 292 ¥. 2d 244 (1961); and certiorari was

denied again, 370 U.S. 903, 82 S.C. 1247, 8 L. Ed. 2d 399

(1962).

Accordingly, we submit that the questivn raised in this

case concerning the voir dire examination of the trial

jurors is not sufficient to support the petition for certi-

orari.”*

25The question concerning Massachusetts practice in the voir

dire examination of prospective jurors was raised as issue No. 4

in the first petition for certiorari (No. 421, October Term, 1959;

Geagan v. Massachusetts, 361 U.S. 895) and as issue No. 3 in the

second petition for certiorari (No. 394, October Term, 1961, 370

U.S. 903).

22

C. Turre was Aspunpant Grounp ror Founpine TeEsrri-

TORIAL JURISDICTION IN MASSACHUSETTS AND VENUE IN

SurrotkK County. ;

The larceny indictment (R. 1-2) is in the general lan-

guage provided by statute (G.L. [Ter. Ed.] ¢. 277, § 79),

which permits proof of larceny in any form (G.L. [Ter.

Ed.] c. 277, §§ 39, 41). Under this indictment it was proper

to prove a violation of G.L. c. 266, § 33(1).2%° Common-

wealth v. Kelley, 184 Mass. 320, 322-324. Commonwealth

v. King, 202 Mass. 379, 386-391. Commonwealth v. Green,

302 Mass. 547, 553-554. In fact, an offense under this sec-

tion was charged specifically by the substitute bills of

particulars (R. 74-76), which allege that the defendants

‘‘with intent to defraud obtained by false pretenses the

making of a check ...’’ (Emphasis added.) Common-

wealth v. Iannello, 344 Mass. 723, 726-727. Accordingly,

the offense defined in G.L. c. 266, § 33 (1), was part of the

larceny case. Therefore, with respect to the questions

of venue and jurisdiction for the larceny indictment, refer-

ence may be made to venue and jurisdiction for the offense

defined in tnis section.

Since there is no statutory venue for G.L. c. 206, § 33 (1),

the common-law rule applies, which is that venue will lie

in the county where the offense was committed. Common-

wealth v. Parker, 2 Pick. 550, 554. Commonwealth v. Quin,

5 Gray 478, 480. Crocker v. Justices of the Superior Court,

208 Mass. 162. The crime is committed when someone

‘‘with intent to defraud, obtains by a false pretence the

26In pertinent part, this statute provides as follows: ‘‘ Who-

ever, with intent to defraud, obtains by a false pretence the making

. of a bill of exchange . . . shall be guilty of larceny.’’ It is

noteworthy that this offense does not require a showing that the

bill of exchange changed hands; the crime has been committed

when the bill of exchange is made.

23 .

making ...of a bill of exchange ...’’ (Emphasis

added.) If the bill of exchange is a check, the crime has

been committed when the check has been made out and

signed, which im this case was at the main office of First

Nattonal in Boston (Tr. 670-671, 1214-1215). Furthermore,

Authority resolutions approving various documents (e.g.,

the proposed construction contract between the Authority

and Foundation), which the jury could have found ere

misrepresentations and without which the jury could have

found that the check could not have been made, were

adopted at an Authority meeting in Boston. Every ele-

ment of the offense defined in G.L. c. 266, § 33 (1), occurred

in Boston. Therefore venue properly was laid in Suffolk

County. Obviously, there is no problem in founding juris-

diction in Massachusetts for this offense.”

~ Therefore the argument made by petitioners (section ITI

of Reasons for Granting the Writ) that there was no evi-

dence of a larceny committed in Massachusetts (or for

which venue properly would lie in Suffolk County) is

without merit.

Petitioners argue that the larceny terminated when the

$450,000 was paid to Foundation in New York and when

this money was mingled with the general funds of Founda-

tion. They are forced to take that position for this reason:

The later payments made by Foundation to Gordon and

Simmers (the attorney’s fee and the subcontract payments)

ad Under the indictment and substitute bills of particulars the

Commonwealth also could prove an offense under G.L. e. 266, § 30,

which provides in pertinent part that ‘‘ Whoever .. . with intent

to defraud obtains by a faise pretence . . . the property of another

. shall be guilty of larceny ...’’ In this case venue of the

crime defined in this section was properly laid in Suffolk County

(and jurisdiction in Massachusetts). Our argument in support of

this position appears in part D of the Argument infra, in reply to

section IV of Reasons for Granting the Writ contained in the peti-

tion.

24

were deposited by them in Massachusetts banks (Tr. 1495-

1531; Tr. 1537-1551). The venve section for false pre-

tenses which petitioners admit applies (G.L. [Ter. Ed.] c.

277, § 58)** provides for venue wherever the defendant

‘*had possession of the property alleged to have been

stolen.” Therefore, unless petitioners contend that the

money which they received from Foundation and deposited

in Massachusetts banks was not ‘‘property alleged to have

been stolen,’’ they must concede that Massachusetts had

jurisdiction of the larceny charged. However, in arguing

that the crime terminated when the money was paid to

Foundation, petitioners overlook the long-standing Massa-

chusetts rule that larceny is a continuing offense until the

asportation is complete. Commonwealth v. Rand, 7 Met.

475, 477. Commonwealth v. Parker, 165 Mass. 526, 538-539.

Furthermore, the Supreme Judicial Court has found that

(App. A, 1173):

‘*It is clear that the criminal design, from its incep-

tion, contemplated that the funds, through Foundation,

should reach Brady’s hands or the hands of persons

designated by him, and that only when that result had

been achieved would the enterprise, i.e., the larceny,

be complete. And, indeed, it was only when that re-

sult was achieved that the essential larcenous nature,

i.e., the animus furandi, of the plan became clear and

demonstrable. Simmers and Gordon knowingly co-

Operated to advance the plan through that decisive

stage. They accomplished with animus furandi the

asportation of the funds both in New York and in

Massachusetts.”’

28 Petitioners argue that G.L. (Ter. Ed.) c. 277. § 58, is the

only venue section for false pretenses. However, the Supreme

‘ Judicial Court held in this case (App. A, 1175-1177) that G.L.

(Ter. Ed.) ¢. 277, § 59 also applies.

25 ,

In any event, even if we assume petitioners’ contention

arguendo that the Massachusetts court misapplied state law

in founding venue for the larceny indictment in Suffolk

County, no question arises under the United States Con-

stitution. There are sufficient connections between what

took place in this case and the state of Massachusetts *

to make a finding of jurisdiction in Massachusetts consis-

tent with the fundamental principles of legal proceedings

and therefore in accord with due process. Buchalter v.

New York, 319 U.S. 427. Although a change in the estab-

lished rule as to Massachusetts jurisdiction of the larceny

charge might raise an ex post facto question™ (Bouie v.

City of Columbia, 378 U.S. 347, 84 S.C. 1697; Beazeil v.

Ohio, 269 U.S. 167, 46 S.C. 68), a change in the rule as to

the county in Massachusetts in which venue of this crime

may be laid would not. Cook v. United States. 138 US.

157, 183, 11 S.C. 268, 275. Gut v. State of Minnesota, 9

Wall. 35, 37.

D. No ConstiTuTIoNaL QUESTION Is RalsED BY THE ACTION

OF THE SuPREME JupiciaL Court In OVERRULING A PRioz

DEcISION WHICH HaD CLEARLY Misappuiep a State Srart-

UTE CoNCERNING VENUE.

In part IV of the petition questions are raised under

the United States Constitution concerning the holding by

the Supreme Judicial Court that the venue provision of

22The Authority, First National (construction fund trustee)

and the garage are located in Boston. False pretenses were made

in Boston. The $450,000 check to Foundation was made and signed

in Boston. Proceeds of the larceny were deposited in banks in

Andover and Lawrence, both in Massachusetts.

As pointed out previously, no substantial question can be

raised as to jurisdiction in Massachusetts of the larceny charge.

26

G.L. (Ter. Ed.) ¢. 277, § 59,*! applies to this case.** This

argument is based on the fact that in 1905 the Supreme

Judicial Court held (Commonwealth v. Friedman, 188

Mass. 308) that the predecessor of this statute did not ap-

ply to the predecessor of what is now Massachusetts Gen-

eral Law, c. 266, one of the larceny statutes under which

the petitioners in this case were charged.* In deciding the

present case, the Supreme Judicial Court, after careful

consideration, reversed the holding in Friedman and ruled

that the venue statute in question does apply to G.L. c. 266,

§ 30 (App. A, 1175-1177). The petitioners now assert that

the overruling of Friedman raises due process and ex post

facto questions.

In reply to this argument, it should be noted that the first

time this argument has been made is in the petition to this

Court. In its brief (and in oral argument) the Common-

wealth had argued that Friedman should be overruled

(App. A, 1176). Under the Massachusetts practice (Rule

16 of the Rules for the Regulation of Practice before the

Full Court of the Supreme Judicial Court),* petitioners

had the right to file a reply brief to answer this argument.

No reply brief was filed, and nothing was said in the oral

81 This statute provides as follows:

‘‘The crime of obtaining money or a personal chattel by a false

pretence . . . may be alleged to have been committed, and may be

prosecuted and punished, in any county where the false pretence

was made, written or used, or in or through which any of the prop-

erty obtained was carried, sent, transported or received by the

defendant.’’

82 App. A, 1175-1177.

83 Petitioners were also charged with the forms of larceny de-

fined in G.L. e. 266, §§ 33(1) and 34. Commonwealth v. King, 202

Mass. 379, 386-391. Commonwealth v. Kelley, 184 Mass. 320, 322-

324. Commonwealth v. Ianncllo, 344 Mass. 723, 726-727 (R. 74-76).

%4See Appendix I attached to this brief.

_—_—,

27 ,

arguments about constitutional questions that might be

raised by the overruling of Friedman. Under Massachu-

setts practice the failure to brief and argue the questions

constituted a waiver (Rule 13 of the Rules for the Regula-

tion of Practice before the Full Court of the Supreme

Judicial Court).**

The reason for this rule is well illustrated by what hap-

pened in this case. The Commonwealth made three argu-

ments before the Supreme Judicial Court in support of a

finding that venue had been established in this ease.” The

first and third arguments had nothing to do with the ruling

in the Friedman case. Only the second argument concerned

the holding in Friedman. In its opinion the Supreme J udi-

cial Court dealt only with the venue question concerning

the Friedman case, and made no reference, one way or the

other, to the other arguments made by the Commonwealth

in support of venue. Indeed, since the Court was per-

suaded that Friedman should be overruled, and since no

contrary argument had been made by petitioners either by

reply brief or by oral argument, there was no reason for

the Court to concern itself with the other arguments about

venue. If the question which the petitioners now raise

(about the overruling of Friedman) had been argued to

the Supreme Judicial Court, that Court would have had

the opportunity to deal with the other venue arguments

made by the Commonwealth, to determine whether venue

had been established regardless of whether Friedman was

overruled. Therefore we suggest that in this case there is

special force to the rule that failure to make an argument

at the appropriate time constitutes a waiver.

"35 See pages 37-38 of the petition.

36 See Appendix I attached to this brief.

37 Reference to these arguments appears at page 37 of the peti-

tion, n. 16.

28

Moreover, the petitioners’ argument concerning the

overruling of Friedman is without merit. The principal

case cited by them in support of their argument is Bouie

v. City of Columbia,®* 378 U.S. 347, 84 S.C. 1697. In the

Bouie case there was a statute which made it a crime to

enter upon premises after being notified of a prohibition

against such entry. The state court held that this statute

would support a conviction of defendants who were invited

to enter upon certain premises but then refused to leave,

after being directed to do so. Clearly, this was such a

strained construction of a criminal statute as to amount to

ex post facto law-making by the court. In the present case

the situation is entirely different. Here we have a venue

statute which, on its face, clearly applies to the larceny

statute. As the Supreme Judicial Court said: ‘‘If this

were a case of first impression we should have no hesita-

tion in reaching the conclusion that by the plain terms of

G. L. c. 277, § 59, the Commonwealth’s contention is cor-

rect’? (App. A, 1175). In overruling the Friedman case

the Supreme Judicial Court was not attempting to make

law, but was merely correcting an earlier decision which

had misconstrued the plain meaning of a statnte and had

overlooked a lengthy and uniform legislative history (App.

A, 1176-1177).

Moreover, a change in the law of a state concerning the

county in which venue may be laid (assuming the state had

88 This Court has held that the ez post facto clause of the United

States Constitution is directed against legislative action and does

not reach erroneous or inconsistent decisions by a state court.

Frank v. Mangum, 237 U.S. 309, 35 S.C. 582. Ross v. Oregon,

227 U.S. 150, 33 S.C. 220. This rule appears to have becn modified

by the recent decision in ‘Bowie v. City of Columbia, supra. How-

ever, Bouie applies to ‘‘unfureseeable’’ judicial actior.. In view

of the clear meaning of the venue statute concerned in this case.

the decision by the Supreme Judicial Court in this case was not

‘*unforeseeable.”’

29

jurisdiction over the crime when it was committed) does

not present a question under the United State: Constitu-

tion.

E. Tse Eviwence was Surricirent To Suprort THE Con-

VICTIONS.

In section V of the petition it is argued that the evi-

dence was insufficient, in several respects, to support the

convictions. The short answer to this argument is that it

concerns alleged errors in the application of state law

which do xot present questions under the United States

Constitution. Buchalter v. New York, 319 U.S. 427.

Furthermore, in each respect referred to by petitioners

the evidence was clearly sufficient to support the convic-

tions.

As to the criminal intent of Simmers and Gordon, there

was evidence that they received $165,000 from Foundation

($100,000 for the legal fee and $65,000 for the subcontract)

for which they knew that no services had been rendered.

They produced Craven to act as a straw in transferring the

finder’s fee; they were present when the finder’s fee, in

cash, was counted at the bank; Simmers purchased the

briefcase in which the cash was carried from the bank. In

addition to receiving the payments under the so-called at-

torney’s fee and subcontract, they sent false statements

and bills to Foundation to support these payments. Clearly

they were acting, with guilty knowledge, in concert with

the other conspirators. Nor can they escape liability for

the larceny merely because they were not participants in

one part (false pretenses) of a crime that was committed in

several stages. The law in Massachusetts is that the crime

of larceny is a continuing offense until the asportation is

3° See section C of this argument, supra, pp. 22-25.

30

complete and that knowing participants in one or more

aspects of the commission of the crime are guilty of the en-

tire crime (App. A, 1172-1173).

As to the element of reliance on the false pretenses, the

evidence was that under the Bond Resolution (Ex. 6; Tr.

324-331) the construction fund trustee was obligated to

make payments upon receipt cf a reguisition from the Au-

thority certified by the construction engineer. Accordingly,

requisition 1 (calling for the payment to Foundation of

$450,000), which had been signed by defendant Brady and

certified by defendant Kiernan, caused the payment to be

made. It is of no consequence that one or more members

of the Authority may have been parties to the conspiracy,

since the knowledge of a fraudulent agent is not imputed

to his principal. Commonwealth v. Mulrey, 170 Mass. 103,

106. See App. A, 1171-1172.

Finally, petitioners contend that the indictments were

defective in narning the Authority instead of First National

as to the victim of the crimes. This argument is entirely

without merit (App. A, 1173-1175).

F. Tue Petition Requests THAT CERTIORARI ISSUE TO THE

Wrone Court.

This case was tried under the provisions of G.L. c. 278,

§§ 33A-33G (R.5). The entry of the appeal did not trans-

fer the case from the Superior Court to the Supreme Ju-

dicial Court, but only the law questions raised. G.L. c. 278,

§ 33E. The final judgment was entered in the Superior

Court. The rescript from the Supreme Judicial Court is

not a judgment, but merely a direction as to what judg-

ment should be entered in the Superior Court. Gray v.

Ccok, 135 Mass. 189, 190.

31 .

Conclusion.

For the reasons presented in section F of the Argument

herein the petition for certiorari should be dismissed. Al-

ternatively, for the reasons presented in the other sections

of our Argument, the petition should be denied.

Respectfully submitted,

EDWARD W. BROOKE,

Attorney General, Commonwealth of

Massachusetts,

GAEL MAHONY,

WILLIAM B. DOCKSER,

Special Assistant Attorneys General,

Commonwealth of Massachusetts.

| Appendix follows. ]

PF FORE PT eT TEIN PGA RIRIME BENE ED IRIE BEE AT RAGIN: OLE YT IBD, HARMS BED RGA FER ARP IST TE EP ARE NN ST

32

Appendix I.

RvuuLeEs FoR THE REGULATION OF PRACTICE BEFORE THE FULL

Court oF THE SupPpREME JupiciaL Court (1952, as

AMENDED NoveMBER 5, 1962).

13.

NO ORAL ARGUMENT WITHOUT BRIEF EXCEPT BY LEAVE OF COURT.

No oral argument shall be heard, except by special per-

mission of the court, in behalf of a party for whom no brief

has been filed as provided in these rules. The court need

not pass upon questions or issues not argued in briefs.

Nothing argued in a brief shall be deemed to be waived by

a failure to argue orally.

16.

TIMES FOR FILING BRIEFS.

(A) Except as provided elsewhere in this rule, the brief

of the party entering a case in the full court shall be filed

not later than the twenty-eighth day after entry of the

case, and briefs of other parties shall be filed not later than

the forty-ninth day after such entry. If the last day for

filing any such brief falls on a legal holiday, the brief may

be filed on the next wo:king day. Not later than one day

(exclusive of a Saturday, Sunday, or holiday) before the

first day of the sitting at which the case is in order for

argument, any party may file a brief in reply. Each party

shall file with his brief a certificate of mailing or delivering

a copy to counsel for each other party. Twenty-five copies

of each brief shall be filed.

(B) If the time for filing the brief for the party entering

a case falls between the twenty-seventh day prior to the

May sitting and August 31, the parties may agree to ex-

' tend the time for filing such brief to a date not later than

33

the third Monday of September and the briefs of other

parties twenty-one days later. Such a case shall not be

argued before the first Monday of November unless the

party entering the case is required by such agreement to

file his brief prior to August 15. Such agreement shall be

filed with the clerk not later than seven days after entry

of the case.

(C) No brief may be filed at any other time except as

may be provided by agreement filed with the clerk and ap-

proved by a justice.