Opinion
SUCR201211015 SUCR201211018SUCR201211016 SUCR201211019SUCR201211017 SUCR201211020.
12-31-2013
COMMONWEALTH v. David FORLIZZI et al.[1]
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTION TO DISMISS
JEFFERY A. LOCKE, Justice. In November 2012, a Suffolk County grand jury indicted the defendant, David Forlizzi, for misleading another person in connection with a criminal proceeding (obstruction of justice) in violation of G.L.c. 268, § 13B, five counts of conspiracy to obstruct justice in violation of G.L.c. 274, § 7, three counts of corruption of a witness in violation of G.L.c. 268A, § 2(c), five counts of conspiracy to corrupt a witness in violation of G.L.c. 274, § 7, three counts of subornation of perjury in violation of G.L .c. 268, § 2, three counts of conspiracy to suborn perjury in violation of G.L.c. 274, § 7, and for being a habitual offender in violation of G.L.c. 279, § 25. Defendants Fred Battista, Laura Battista, William Penta, Deana Pistone, and Janet Vaccari were each indicted on similar charges stemming from their alleged wrongdoing in connection with a previous trial in March 2012 involving purported insurance fraud schemes. The Commonwealth alleged that the defendants were involved with schemes to damage motor vehicles and fraudulently bill insurance companies by falsely claiming that the damages were caused by motor vehicle accidents or incidents that never actually happened.
On April 24, 2013, Forlizzi filed a motion to dismiss the indictments. Forlizzi argues that the indictments against him should be dismissed because the Commonwealth, in violation of Mass.R.Prof.C. 3.8(f), caused the grand jury to issue a subpoena for and received the bank records of his attorney, Bernard Grossberg. Forlizzi also moves to dismiss based on the ground that the Massachusetts Office of the Attorney General improperly obtained the tax records of Attorney Grossberg. Each defendant has subsequently joined in Forlizzi's motion to dismiss. On April 30, 2013, the Commonwealth filed a response to Forlizzi's motion. Thereafter, the parties filed various supplemental memoranda and materials.
Forlizzi also argues that this violated his rights to counsel guaranteed to him by art. 12 of the Massachusetts Declaration of Rights and by the Sixth and Fourteenth Amendments to the U.S. Constitution.
On August 6, 2013, Fred Battista filed a supplemental memorandum in support of his motion to dismiss.
In addition, this Court allowed the American Civil Liberties Union of Massachusetts to file briefs, amicus curiae, in support of Forlizzi and participate in oral arguments. This Court also allowed Attorney Joseph J. Machera, who previously represented Fred Battista, to intervene and participate in oral arguments. This Court held two hearings on the motion on July 30, 2013 and August 13, 2013. After hearing and for the reasons set forth below, defendants' motion to dismiss is DENIED.
FINDINGS OF FACT
The following facts are drawn from the materials submitted by the parties and the oral and written representations made to this Court by the attorneys appearing at the hearings on July 30, 2013 and August 13, 2013.
At the August 13, 2013 hearing, neither the defendants nor the Commonwealth felt that an evidentiary hearing was necessary to resolve any factual issues related to the defendants' motion. This Court agrees with the parties that an evidentiary hearing is not necessary. There are sufficient materials before this Court from which the court can make findings of fact and draw reasonable inferences therefrom.
In March 2008, a Suffolk County grand jury indicted Forlizzi, Fred Battista, Laura Battista, Vaccari, Penta, and Pistone for insurance fraud, larceny, conspiracy, and other criminal offenses. The Commonwealth alleged that the defendants were involved in an insurance fraud scheme in which they damaged motor vehicles, falsely claimed that the damages were caused by accidents that never happened, and fraudulently billed insurance companies for repair work. Before their indictments, Vaccari, Pistone, and Penta told investigators from the Insurance Fraud Bureau of Massachusetts (IFB) that Forlizzi and Fred Battista arranged the fraud. Forlizzi and Fred Battista helped operate Collision Headquarters, Inc., an automobile body shop on Woodside Avenue in Winthrop, Massachusetts, formerly known as Winthrop Collision Center. Vaccari, Pistone, and Penta told investigators at the IFB that Forlizzi and Fred Battista had a well-known practice of recruiting people to bring them their undamaged motor vehicles to be damaged. In exchange, customers would get $200 in cash up front and additional cash proceeds from insurers at a later date.
Vaccari is Pistone's mother. Laura Battista is Fred Battista's stepmother.
In November 2008, Vaccari, Pistone, Penta, and Laura Battista pleaded guilty to various offenses, including motor vehicle insurance fraud in violation of G.L.c. 266, § 111B, conspiracy, and larceny over $250. Vaccari and Pistone pleaded guilty to conspiring with Forlizzi to carry out the fraud. Penta pleaded guilty to conspiring with Fred Battista to carry out the fraud. Laura Battista pleaded guilty to conspiring with Forlizzi and Fred Battista to carry out the fraud. Vaccari, Pistone, Penta, and Laura Battista received probation, and Vaccari, Penta, and Laura Battista were ordered to pay restitution.
The trial of Forlizzi and Fred Battista was originally scheduled for 2010, but encountered delays. After their guilty pleas, Vaccari, Penta, Pistone, and Laura Battista each asserted their Fifth Amendment privilege against self-incrimination and refused to testify at the trial of Forlizzi and Fred Battista. The court immunized Vaccari, Penta, Pistone, and Laura Battista pursuant to G.L.c. 233, §§ 20C–20E so they could testify for the Commonwealth. Vaccari and Pistone appealed their immunity orders under G.L.c. 211, § 3, and a single justice of the Supreme Judicial Court (Spina, J.) denied their petitions. They appealed the single justice's ruling, but the Supreme Judicial Court denied their appeals on October 13, 2011. See In re Vaccari , 460 Mass. 756, 761, 955 N.E.2d 266 (2011). The trial of Forlizzi and Fred Battista was rescheduled for March 2012.
The trial of Forlizzi and Fred Battista began on March 5, 2012 before Superior Court Judge Regina L. Quinlan. Assistant Attorney General Joshua Pakstis represented the Commonwealth. Attorney Bernard Grossberg represented Forlizzi, and Attorney Joseph J. Machera represented Fred Battista. Attorney Michael A. Cioffi represented Vaccari, Penta, and Pistone. Attorney Andrew R. Berman represented Laura Battista.
The Commonwealth failed to prove its case against Forlizzi and Fred Battista at trial. The Commonwealth called Vaccari, Laura Battista, and Penta as immunized witnesses. Vaccari, Laura Battista, and Penta admitted their involvement in the motor vehicle insurance fraud, but denied that Forlizzi or Fred Battista were involved. According to the Commonwealth, this testimony was contrary to their previous statements to IFB investigators and their November 2008 guilty pleas. Despite search efforts by the Massachusetts Office of the Attorney General and the Massachusetts State Police, Pistone could not be located to appear as a witness at the trial. On March 8, 2012, at the close of the Commonwealth's case, Judge Quinlan allowed Forlizzi's and Fred Battista's motion for a required finding of not guilty.
The Commonwealth anticipated that Pistone would have provided testimony implicating Forlizzi in the purported insurance fraud scheme, consistent with her prior statements to the IFB and her November 2008 guilty plea.
At the conclusion of the trial and in connection with her ruling on the motion for a required finding of not guilty, Judge Quinlan made a number of comments. As reflected in the trial transcript, Judge Quinlan stated:
I think the Commonwealth started this case with the anticipation that—perhaps a naive one—that the witnesses, once offered immunity, would testify consistent with the statements that they previously gained [sic]. They didn't, and they did it with impunity so they think. And I'm going to do something I haven't done in all the years I've been on the bench, and I'm going to allow the motions for a directed verdict. That is an appealable order, and I would urge the Commonwealth to appeal the order. I am also going to do something else which I have never done, either as a lawyer or as a judge, and I am going to recommend that this matter be investigated for obstruction of justice, for perjury, for [subornation] of perjury, and for fraud on the court. It's just—and for disciplinary proceedings. Whatever has happened in this case is a disgrace. Trial Transcript from Mar. 8, 2012 at Volume IV, Pages 24–25. The following exchange then ensued: Mr. Machera: May I get something on the record? The Court: What? Mr. Machera: May I get something on the record? The Court Officer: Stand up. The Court: You can put whatever you want on the record. Mr. Machera: Your Honor, the word “collusion” has been thrown around a little bit too much here. The Court: Then maybe you—maybe at this point you may not want to put it in the record, and wait and see if there is an investigation on that issue. Mr. Machera: Your Honor, I swear I cannot hear you, and I apologize. I think my ears are blocked up from the cold. I didn't hear what you just said. The Court: You may not want to talk about that until it's determined whether there is going to be some investigation of that fact in this case. Mr. Machera: Well, I want the Court to respect us. I've known this Court for 30 years. We have practiced in this Court for 30 years. Our reputations are at stake here. The Court: I realize that. Mr. Machera: I believe—your Honor, I believe I stayed away from the witnesses so much that I might have done an injustice to my client, because when I saw what Penta looked like—he's the only witness against my client, your Honor–I should have got those records as you suggested. I should have brought a motion to either have a psychiatrist examine him or have his psychiatrist come in to discuss what a bipolar, schizophrenic, alcohol, and drug-induced person would say five years ago when he was at his [peak] with reference to this. He said on the stand, “I was so high, ” but I didn't do it. I think that if he was convicted (defendant), he could bring a motion for ineffective assistance saying that the only witness against him was a psychotic person who Mr. Machera did not take the time to have interviewed. But I want the Court to know—and I've known my brother for 30 years—we wouldn't talk to him about it. We told the witnesses—our clients two things—[.] The Court: Whether it was you, Mr. Machera—and I take no joy in this. Believe me, I take no joy in this, because I have known you for longer than 30 years, and I also have had Mr. Grossberg appear before me many times, and I have nothing but professional respect for the two of you. But somebody spoke to these witnesses. All three—three of the four were represented by the same attorney. One witness disappears, and the other two do a complete about face, and then virtually have identical scenarios in their testimony. It has a stench to it; it requires investigation. I'm sorry you were involved, but that's the reality. I can't control who gets investigated. Mr. Machera: Judge, two other—two other judges in this Court chastised the attorney general for not keeping them on the hook when they pled out to—to not keeping their testimony. They—Judge, I would like you to think— The Court: I—I didn't give any praise to the attorney general for this. They should never have put these people on the stand unless they knew what they were going to say. Mr. Machera: But, Judge, you hear more than we do. I try a case now and then; you try cases every day, Judge, as a judge, and you hear them. The—the prosecution normally gets low-level people. They flip them over. They get them what they want them to say, they flip someone over, and they have to keep saying the same thing over and over again or they go to jail. In this case they goofed. They didn't keep them on line; they gave them immunity. I would like to think that because they had the immunity they told the truth. What you don't know about Janet Vaccari— The Court: Then did they lie when they were making the plea? Mr. Machera: Judge, she—Judge, she— The Court: I don't want to argue it with you, Mr. Machera. Mr. Machera: No. I'm just saying Janet Vaccari has cancer that she thinks she might die from, and— The Court: I right now do not feel that I can argue this with you with any kind of a dispatch. Mr. Machera: But I want— The Court: I am upset by it. I think I have shown I was upset during the trial. I'm allowing the motion for required finding. If the Commonwealth wants to appeal it, that's their problem; but I am also going to recommend that this situation be investigated, because I think it needs to be investigated. Mr. Machera: I was arguing to you, whom I have known for 30 years, that I would never be involved in that, and I know my brother wouldn't either. We discussed— The Court: And as I said, I know the two of you and I have professional respect for both of you; but what happened in this courtroom was wrong, and whether it was orchestrated outside of your control is something I'm not going to make a determination of or finding of. I'll leave that to people who can do it with more dispassion than I can. Mr. Grossberg: Your Honor, may I? The Court: You may. Mr. Grossberg: Your Honor, I understand your Honor's concern, and I can tell, having appeared before you a number of times, how personally disturbed you were by what you perceived happened here. What bothers me more is that I cherish the Court's respect, and I—I just would like to state that I knew Janet Vaccari by another name, Imbruglia, and by that name from day one. And I also would know something off the record about her involvement in other matters. I made a particular effort to not go anywhere near her because of what she has done in other matters. But I would express to the Court sincerely that if there was any type of shenanigans behind the scenes I was not involved, and—and it disturbs me that your Honor would think that I or Mr. Machera who [sic] get involved in that. The Court: Well, [number one], as I told Mr. Machera, and I will tell you, you've appeared in front of me before, I have nothing but the utmost professional respect for you as a lawyer, you are a good lawyer and you know how to lawyer. On this case, whether it was done outside or inside is not a finding I can make. I happen to have professional respect, I have never seen you do anything that would even suggest that you would do any kind of fraud on the Court, or do anything less than with professional integrity. This case has a stench to it. Unfortunately, you are involved in the case, and unfortunately that means that if there is an investigation—I don't know whether there will be because I have no authority in that. All I can do is make a recommendation or referral; but something happened in this case that just doesn't sit right, and the integrity of the system, the integrity of the court has to be upheld, and it has to be upheld by an independent investigation. The two of you I consider to be lawyers for whom I have great respect. I go back to law school with Mr. Machera. I have tried—I have had some very serious cases tried in front of me by you, Mr. Grossberg. I have no reason before this case—and I don't even know what the situation is now—I can quite frankly conceive you two had nothing to do with it, but there was somebody else who did, or there were other people who did who decided this was a good move. What happened in here is wrong, and it's going to have to be investigated. Mr. Pakstis: You Honor, would the Court entertain a motion for expedited transcript? The Court: I have already ordered the transcript. Mr. Pakstis: Oh. You have. The Court: The conspiracy charges will be dismissed; if there is no crime there is no conspiracy. The Clerk: David Forlizzi and Fred Battista, the motions for required finding of not guilty are allowed, and findings of not guilty will enter to those offenses. Grossberg: Just to clarify, I take it that's on the indictments that Mr. Forlizzi was tried on, and somewhere on the set also includes the conspiracy indictments. The Court: Okay. The Pistone indictments, with the consent of the Commonwealth, are dismissed on that, all the ones relating to that issue. You can go over those numbers with Margaret (clerk) when I finish. As to the indictments that were on trial, since they've been found not guilty of the substantive offenses, the conspiracy will be dismissed. Mr. Grossberg: And may I assume that—there is a habitual indictment based upon these allegations—that ... The Court: They are all dismissed. Mr. Grossberg: Thank you. The Court: The stakes are very high, Mr. Grossberg, I understand that. All right. I'm going to take a minute, and then bring the jury down. Trial Transcript from Mar. 8, 2012 at Volume IV, Pages 25–32.Judge Quinlan sent Attorney General Martha Coakley a letter dated March 8, 2012 for purposes of recommending an investigation in connection with the trial of Forlizzi (SUCR2008–10272) and Fred Battista (SUCR2008–10270). Judge Quinlan wrote:
The purpose of this letter is to recommend that an investigation into perjury, subornation of perjury and obstruction of justice be conducted with respect to the trial of the above-numbered indictments. I do not make this recommendation lightly. The testimony given by immunized witnesses during the trial compels me to recommend that there be an investigation of possible perjury, subornation of perjury and obstruction of justice. Since I am unsure of jurisdiction, I am making this recommendation to you trusting that you will refer it to the District Attorney if that is appropriate.
The above-numbered indictments alleging Motor Vehicle Insurance Fraud and larceny were tried before me this past week. The defendant Forlizzi was charged as a habitual offender. Today, I allowed a Motion for Required Finding at the close of the Commonwealth's case. I did so with great reluctance considering what had transpired during the trial.
Four witnesses had been immunized after each had pled guilty to indictments arising from the same motor vehicle insurance claims, Janet Vaccari, William Penta, Deana Pistone (daughter of Janet Vaccari) and Laura Battista (step-mother of the defendant Battista). After the grant of immunity, Vaccari, Penta and Battista testified. Vaccari and Penta have been represented by attorney Michael A. Cioffi. He also represented the witness Pistone who has been among the missing. I will not recap the testimony given except to state that it was radically different from statements previously made to investigators and in conjunction with the facts recited at the time of their guilty pleas.
A transcript of the proceedings has been ordered, a copy will be filed with the court. All exhibits in the case have been retained and will be available for your consideration. If there is anything else you may need, please advise.
Thank you for your anticipated consideration.
Judge Quinlan also sent a letter to Constance V. Vecchione, Bar Counsel, dated March 8, 2012. Judge Quinlan wrote:
I am referring the matter of Attorney Michael A. Cioffi and his joint representation of immunized witnesses who testified at the trial of the above-numbered indictments [SUCR2008–10272 & SUCR2008–10270] to determine whether Attorney Cioffi has engaged in unprofessional conduct in violation of Rule 8.04 [sic].
The indictments alleging Motor Vehicle Insurance Fraud and larceny were tried before me this past week. Four witnesses had been immunized after each had pled guilty to indictments arising from the same motor vehicle insurance claims, Janet Vaccari, William Penta, Deana Pistone (daughter of Janet Vaccari) and Laura Battista (step-mother of the defendant Battista). After the grant of immunity, Vaccari, Penta and Battista testified. Vaccari and Penta have been represented by attorney Michael A. Cioffi. He also represented the witness Pistone who has been among the missing. I believe a review of the record in this case will demonstrate that there is a need to determine whether the testimony given was the product of professional misconduct.
A transcript of the proceedings has been ordered, a copy will be filed with the court.
Thank you for your anticipated consideration.
The Office of the Attorney General promptly initiated an investigation. According to Assistant Attorney General Mullin, on March 9, 2012, there was a victory party for Forlizzi at the Kowloon Restaurant on Route 1 in Saugus, Massachusetts. Massachusetts State Police Troopers found out about the party and attended. They wore plain clothes and hidden cameras without sound recording. The troopers observed that Attorney Cioffi was present at the party and congratulating Forlizzi. There was a cake with frosting that read, “ David v. Goliath.” According to Assistant Attorney General Mullin, the fact that Attorney Cioffi was at Forlizzi's victory party after he had just represented two of the witnesses who had changed their testimony to exculpate Forlizzi (Vaccari and Penta) and the fact that his third client (Pistone) could not be located to appear as a witness at trial, contributed to the decision to look at the role of the attorneys and whether they were involved in what happened at the trial.
The Office of the Attorney General opened a grand jury investigation in late March 2012. According to Assistant Attorney General Mullin, based on what had occurred at trial and what Judge Quinlan stated in court, the Office of the Attorney General opened the investigation with the six defendants (Forlizzi, Fred Battista, Laura Battista, Penta, Vaccari, and Pistone) as targets and the four attorneys (Grossberg, Machera, Cioffi, and Berman) as “potential targets.” Assistant Attorney General Mullin noted that “[i]n treating the attorney as potential targets at the initiation of the investigation, the AGO relied on the fact that Justice Quinlan, an experienced Superior Court Judge, had not ruled out the involvement of the attorneys in the misconduct she had witnessed.” See Commonwealth's Ex Parte Submission and Request for Confirmation that Certain Tax Information is Not Exculpatory Evidence Within the Meaning of Mass.R.Crim.P. 14 at 5. Based on all of the materials before this Court, this Court finds that Attorneys Grossberg, Machera, Cioffi, and Berman were indeed targets of the Office of the Attorney General's investigation into potential wrongdoing associated with the March 2012 trial of Forlizzi and Fred Battista.
It should be noted that Assistant Attorney General Peter Mullin was not involved in the grand jury investigation at issue here. Mr. Mullin is a veteran prosecutor at the state and Federal levels and has an unblemished reputation for integrity. This case does not in any way detract from that reputation.
In footnote one of this pleading, Assistant Attorney General Mullin wrote that “[t]he factual representations made in this submission are ... believed to be true, correct and complete to the best of my knowledge, information and belief.”
The initial focus of the investigation was to obtain bank records and telephone records relating to the six defendants and four attorneys to see who was communicating with whom prior to the start of trial and to look for money being paid, directly or indirectly, to the witnesses who had changed their testimony or were unavailable. The Commonwealth obtained the bank records of the defendants, the attorneys, Collision Headquarters, and other entities or individuals believed to be involved in potential wrongdoing. See Commonwealth's Notice of Discovery III dated January 25, 2013 at 3–7. Grand Jury Exhibit 3 from November 19, 2012 consisted of 2, 638 pages of bank records of Attorney Cioffi from his Century Bank account and the bank records of Attorney Grossberg from his Sovereign Bank account. Id.
On April 4, 2012, Assistant Attorney General Brendan O'Shea, on behalf of the Commonwealth, issued a grand jury subpoena for Attorney Grossberg's bank records at Sovereign Bank. In the cover letter to Sovereign Bank that accompanied the subpoena, Assistant Attorney General O'Shea wrote:
On March 30, 2012, the Commonwealth obtained Attorney Grossberg's Interest on Lawyers' Trust Accounts (IOLTA) information from the Board of Bar Overseers (BBO). The Commonwealth similarly obtained IOLTA account information from the BBO for Attorneys Berman, Cioffi, and Machera.
Enclosed please find a subpoena. Please note that a personal appearance is not required, provided I receive the documents by April 19, 2012. Also enclosed is a Keeper of the Records affidavit, and I would request that the Keeper of the Records sign it.
Please note that this subpoena is being issued on behalf of a grand jury conducting a confidential criminal investigation. Accordingly, the Office of the Attorney General requests that you not disclose the existence of this subpoena to third parties, including any individuals who may be named in the subpoena. you for your help with this matter, and please contact me with any questions.
Letter from Assistant Attorney General O'Shea to Sovereign Bank dated April 4, 2012 (emphasis in original).
The actual subpoena is dated April 4, 2012 and orders the Keeper of Records for Sovereign Bank to appear before the Suffolk County Special Grand Jury on April 19, 2011[sic] at 9:00 a.m. The subpoena is signed by Assistant Attorney General O'Shea and Rose Bagalawis, a criminal investigator for the Office of the Attorney General. Attachment A to the subpoena describes the requested documents as follows:
All documents and records of accounts for the individual listed below in (A) below, and for the time period listed in (B) below, including but not limited to any and all: account opening forms, bank account statements, incoming and outgoing checks, signature cards, deposit and withdrawal items (front and back), records/slips/tickets/cash out/cash in print outs, wire transfer records, correspondence, change of address requests, memoranda, SAR's, internal memoranda concerning action taken on the account by the bank, loan files, credit card account records, and safety deposit box records:
(A) Bernard M. Grossberg (B) Time period March 1, 2008 to present.
Provide all records requested above, including financial records in any and all amounts of money, including from account # [ ]
Subpoena Duces–Tecum dated April 4, 2012. Pursuant to the subpoena, Sovereign Bank provided the Office of the Attorney General with more than a thousand pages of Attorney Grossberg's bank records from March 1, 2008 to April 2012.
Yet, as noted by Forlizzi in his written memorandum and as reflected in the court docket, Attorney Grossberg did not file a notice of appearance in Forlizzi's case until August 13, 2009. Forlizzi was arraigned on April 15, 2008 and was represented by another attorney until Attorney Grossberg filed his notice of appearance in August 2009. Thus, the Commonwealth requested Attorney Grossberg's bank records for a time period of more than one year, March 1, 2008 to August 13, 2009, before Attorney Grossberg even began his legal representation of Forlizzi.
Assistant Attorney General Mullin has submitted an affidavit dated August 13, 2013 in support of the Commonwealth's opposition to the defendants' motion to dismiss. Assistant Attorney General Mullin noted that the subpoena for Attorney Grossberg's bank records was issued on April 4, 2012 and the intended return date was April 19, 2012 even though the return date was typed in as April 19, 2011. This was a typographical error. He provided further information related to the grand jury investigation in this case and stated:
3. For many years it has been the practice of the Attorney General's Office to request, pursuant to Mass.G.L.c. 277, § 2A, to empanel a Suffolk County Grand Jury to hear cases presented by the Attorney General's Office. These Grand Juries serve for a six month term, unless extended, and are referred to as the Attorney General's Special Suffolk County Grand Jury. These Grand Juries hear multiple matters during the course of their service. Some matters are presented in as little as a single day. Other matters may be presented in multiple sessions within the regular term of the Grand Jury, and the Commonwealth will petition the Court, pursuant to Mass.G.L.c. 277, § 1A, to extend the term of the Grand Jury to complete an investigation. 4. On April 4, 2012 a new Attorney General's Special Suffolk County Grand Jury was empaneled by Justice Janet Sanders. This Grand Jury began hearing testimony in investigations presented by the Attorney General's Office on April 5, 2012. This Grand Jury first heard testimony relating to the investigation which resulted in the indictments in this case on April 19, 2012. The transcript of the testimony heard on April 19, 2012 in connection with this matter exceeds 200 pages and has been produced to the defendants as part of automatic discovery in this case.
5. Sovereign Bank chose to send the records requested in the subpoena relating to accounts in Mr. Grossberg's name to the Attorney General's Office, rather than send a Keeper of the Records witness to the Grand Jury. It has been my experience, as a federal and state prosecutor for more than 35 years, that business entities, such as banks and telephone companies, which receive numerous grand jury subpoenas, universally prefer to send the requested records to the prosecutor's office, rather than send a witness to the Grand Jury.
6. The records which were produced by Sovereign Bank to the Attorney General's Office in response to the subpoena were produced to the Grand Jury on November 9, 2012 and marked as Exhibit 3 of that date. Both the transcript of the testimony before the Grand Jury on November 9, 2012, and Exhibit 3 from that date, have been produced to the defendants as part of automatic discovery in this case.
7. On October 1, 2012, the Attorney General requested the Suffolk County Superior Court to extend the term of the Attorney General's Special Grand Jury to complete this investigation and several other matters. The request was allowed by Justice Carol Ball on October 1, 2012. The investigation continued before the Grand Jury. On November 9, 2012 the Grand Jury voted to return the indictments in this case. The Grand Jury did not complete its deliberations until late in the day and there was no Judge available to accept the return of the indictments in open court. The Foreperson of the Grand Jury appeared before the Court on November 13, 2012, the next day the court was in session, to make the return in open court.
Affidavit of Assistant Attorney General Peter A. Mullin dated Aug. 13, 2013.
Using phone records, bank records, and others sources of information, the Commonwealth investigated the relationships and dealings between the targets of the investigation and other individuals. The Commonwealth learned that Attorney Cioffi previously represented Forlizzi in 2003 and 2004 when Forlizzi was charged with and pleaded guilty to larceny over $250 in Chelsea District Court. The court sentenced Forlizzi to two years in the house of correction, with one year to serve. Attorney Cioffi successfully argued that the sentence should be revised and revoked, and after serving ninety-nine days, Forlizzi was released from custody. Attorney Cioffi never informed Judge Quinlan or the Commonwealth that he had previously represented Forlizzi or that he had a personal relationship with Forlizzi.
Using phone records, the Commonwealth learned that Attorney Cioffi and Forlizzi communicated by phone calls and text messages on multiple instances in February and March of 2012. This was around the time that Pistone disappeared prior to the March 2012 trial of Forlizzi and Fred Battista. Using bank records, the Commonwealth learned that most of Pistone's banking transactions were in the area of Boston, Massachusetts, but in the period immediately prior to and during the March 2012 trial, she had a number of banking transactions in the Plymouth, New Hampshire area. The Commonwealth reviewed Pistone's Facebook page, which had information relating to Plymouth House, an upscale drug rehabilitation facility in New Hampshire. Investigators with the Office of the Attorney General contacted Plymouth House and determined that Pistone had been a resident at Plymouth House immediately prior to and during Forlizzi's and Fred Battista's trial.
Investigators focused their attention on who had paid for Pistone to stay at Plymouth House during the trial. Financial records showed that Vaccari's sister had purchased a $1,000 money order that was used as the initial payment to Plymouth House for Pistone's stay. Bank records also showed that Vaccari made a $3,275 payment to Plymouth House to keep Pistone there during the trial. Immediately prior to the start of trial, on March 1, 2012, exactly $3,275, in the form of three separate postal money orders ($1,000 each) and a " CVS Moneygram" ($275), was deposited into Vaccari's bank account. Bank records from Collision Headquarters, the automobile body shop purportedly involved in the fraudulent insurance claims, had issued a check on March 1, 2012 for $3,275 payable to David Forlizzi. This check had been cashed and the postal money orders and CVS Moneygram were purchased at locations near Collision Headquarters.
The Office of the Attorney General's investigation continued through May 2012, and about this time, investigators learned that in December 2011, Collision Headquarters had issued a $4,000 check to Attorney Grossberg with the notation, " legal fee." According to the Commonwealth, Joseph Kehoe, Forlizzi's supervisor at Collision Headquarters, paid this $4,000 legal fee to Attorney Grossberg along with alleged " bribes" to witnesses so they would perjure themselves or not appear at the March 2012 trial. Moreover, the Office of the Attorney General obtained other evidence, such as text messages, that established that some of the defendants were communicating with each other prior to and during the March 2012 trial.
In addition, the Office of the Attorney General obtained income tax records of the targets of the investigation, including Attorneys Grossberg, Machera, Cioffi, and Berman, and other individuals. According to Assistant Attorney General Mullin, on May 31, 2012, Assistant Attorney General O'Shea sent an e-mail to Rose Bagalawis, the lead investigator on the case, to see if she could confirm that Forlizzi and Fred Battista still worked for Winthrop Collision Center, for instance, through tax records. Bagalawis said she could try, but the Office of the Attorney General could not get tax records from the Massachusetts Department of Revenue unless it believes there are going to be tax charges. Bagalawis told Assistant Attorney General O'Shea that the IFB had access to tax records and asked him if he wanted her to contact senior IFB investigator Sean Kelley to see if he would be able to pull the tax records for them. On June 1, 2012, Bagalawis sent Kelley an e-mail listing sixteen names for which tax records were requested. The sixteen names included the six defendants, four attorneys, Penta's sister, Pistone's boy friend, Vaccari's husband, Vaccari's sister, Collision Headquarters, and Kehoe. On June 5, 2012, Kelley sent a request to the Department of Revenue for tax records for the years 2007 to 2011 relating to each of the sixteen names, in addition to two other individuals. The request form indicated that the individual for which tax information was requested was under investigation by the IFB and that the tax forms would be used solely for the prevention and investigation of fraudulent insurance transactions. On or about July 6, 2012, the Department of Revenue produced income tax records to the Office of the Attorney General, and Assistant Attorney General O'Shea reviewed the tax records relating to Forlizzi and Fred Battista.
The Commonwealth first disclosed that it sought tax records in an ex-parte notice to the Court on July 30, 2013, the date of the scheduled hearing on defendants' motion to dismiss. Upon review, this Court refused to accept the disclosure as an ex-parte filing, finding that the defendants had a right to know of the Commonwealth's access to tax information. In response, the Commonwealth agreed to make its filing available to all defendants.
Affidavit of Laura A. Kessler, Attachment B to Commonwealth's Supplemental Opposition to Defendant Forlizzi's Motion to Dismiss (Pleading No. 35).
The Commonwealth has submitted the affidavit of Laura A. Kessler, IFB's vice president and general counsel. Kessler is IFB's chief legal officer and serves as the administrator for IFB's access to statutorily authorized data sources. She is the contract manager for the agreement with the Department of Revenue for IFB access to tax records. In 2012, the process at IFB for requesting tax records was as follows. An IFB investigator would complete and submit a request form specifying the tax records requested and an internal IFB form indicating why the tax records are necessary in a pending IFB investigation. Kessler would review the request, and if she approved it, she would send the request to the Department of Revenue. Requests were only approved as to open, active IFB investigations. If the Department of Revenue approved the request, it would deliver the tax records to IFB's office, or if the matter had been referred for criminal prosecution, the tax records would be delivered directly to the prosecutor through IFB.
IFB aims to systematically eliminate insurance fraud in Massachusetts through the prevention and the investigation of fraudulent insurance transactions. The Office of the Attorney General has an Insurance and Unemployment Fraud Division that IFB refers cases to for criminal investigation and prosecution. IFB also refers cases to Massachusetts District Attorneys and the United States Attorney for the District of Massachusetts.
The IFB tax return request form states: " The above-named individual is under investigation by the IFB and the use of the tax returns and any information from the returns shall be solely for the prevention and investigation of fraudulent insurance transactions ... This Information will be used solely by authorized IFB employees in the performance of their official duties and responsibilities in the prevention and investigation of fraudulent insurance transactions."
In July 2007, Kessler referred two cases of suspected insurance fraud to the Office of the Attorney General. The cases involved insurance fraud relating to claimed accidental vehicle damage that had not occurred. In one case, Pistone admitted to IFB investigators that the claim of damage from vandalism was fabricated. In the other case, Vaccari and Penta admitted that the accident was staged. Kessler asserts that the fraudulent claims were orchestrated by two employees of Collision Headquarters, Forlizzi and Fred Battista.
Kessler was aware of the March 2008 grand jury indictments, stemming from the IFB's investigation, and the outcome of the March 2012 trial. Kessler knew that Judge Quinlan would be referring the matter to the Office of the Attorney General for possible perjury and obstruction of justice. Thus, " ‘ IFB kept open its investigatory files and Senior Investigator Sean Kelley remained assigned to the matter and was responsible for any investigatory activities required following the trial."
In June 2012, Kelley forwarded Kessler a request for tax records for certain individuals and entities identified by the Office of the Attorney General. Kessler or her deputy general counsel approved the tax records requests and forwarded the requests to the Department of Revenue because of the open and active IFB investigation. Kessler considered the investigation of possible perjury or obstruction of justice to be another necessary step in connection with the referral of the fraudulent insurance transactions to the Office of the Attorney General and an ongoing insurance fraud investigation. The Department of Revenue delivered the tax records to the Office of the Attorney General in July 2012.
At the August 13, 2013 hearing, Assistant Attorney General Mullin indicated that the attorneys' tax records were necessary to obtain information regarding their various bank accounts.
The Office of the Attorney General's investigation before the grand jury continued through October 2012 and eventually resulted in the November 2012 indictments of the defendants in the instant case arising from their alleged misconduct related to the March 2012 trial of Forlizzi and Fred Battista. With the exception of Forlizzi, who is still represented by Attorney Grossberg, each of the defendants is now represented by an attorney different from the one associated with the 2012 trial.
At the July 30, 2013 hearing, this Court conducted a colloquy with Forlizzi and found that Forlizzi was voluntarily making an informed decision to retain Attorney Grossberg in the instant proceedings despite any potential conflicts of interest. Forlizzi indicated to this Court that he had consulted a separate attorney about the issue and still wanted to retain Attorney Grossberg as his attorney in connection with these proceedings.
DISCUSSION
Forlizzi seeks dismissal based on perceived governmental misconduct during the investigation leading to the instant indictments. Although his motion to dismiss was originally focused on prosecutorial overreaching in seeking attorney bank records, it has been expanded to include the additional accessing of state tax information. The Court will address each issue in turn.
1. Massachusetts Rules of Professional Conduct
Massachusetts Rules of Professional Conduct 3.8(f), which governs the special responsibilities of a prosecutor, states:
The prosecutor in a criminal case shall:
(f) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless:
(1) the prosecutor reasonably believes: (i) the information sought is not protected from disclosure by any applicable privilege; (ii) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and (iii) there is no other feasible alternative to obtain the information; and
(2) the prosecutor obtains prior judicial approval after an opportunity for an adversarial proceeding;Mass.R.Prof.C. 3.8(f). Massachusetts Rules of Professional Conduct 3.8(f) discusses the circumstances under which a prosecutor may subpoena an attorney to a grand jury or other criminal proceeding to present evidence about a past or present client. Mass. .R.Prof.C. 3.8(f). See Matter of a Grand Jury Investigation, 453 Mass. 453, 454, 902 N.E.2d 929 (2009); Matter of a Grand Jury Investigation, 452 Mass. 1002, 1002-03, 892 N.E.2d 708 (2009).
Massachusetts Rules of Professional Conduct 3.8(f) replaced a rule referred to as Supreme Judicial Court Rule 3:08, Prosecution Function 15 (PF 15), which provided that " [i]t is unprofessional conduct for a prosecutor to subpoena an attorney to a grand jury without prior judicial approval in circumstances where the prosecutor seeks to compel the attorney/witness to provide evidence concerning a person who is represented by the attorney/witness." In 1990, the Supreme Judicial Court interpreted PF 15 broadly to apply to a prosecutor's subpoena of agents of an attorney, such as an investigator hired by the attorney. See Matter of a Grand Jury Investigation, 407 Mass. 916, 917-20, 556 N.E.2d 363 (1990). The court indicated that " in an especially egregious case" where there has been a violation of PF 15, a judge may consider dismissing the indictments. Id. at 919-20, 556 N.E.2d 363 (noting that judge may " consider ordering the presentation of evidence to a different grand jury without the use of the subpoenaed evidence or any evidence derived from the subpoena, [or] suppression of the evidence without a different grand jury" as other remedies).
The defendants assert that the prosecutor violated Mass.R.Prof.C. 3.8(f) by causing the grand jury to issue a subpoena for and receiving the bank records of Attorney Grossberg in April of 2012. Forlizzi contends that the subpoena's demand for documents was unreasonably overbroad and contained documents encompassed by the attorney-client privilege. Forlizzi argues that such subpoenas damage the attorney-client relationship, may create conflicts of interest, discourage attorneys from providing legal representation to defendants involved in controversial cases, chill the relationship between attorneys and their clients, and may be subject to abuse by prosecutors. See, e.g., United States v. Klubock, 832 F.2d 649, 653-54 (1st Cir.1987), aff'd by a divided court, 832 F.2d 664 (1st Cir.1987) (discussing rationale for PF-15). The defendants contend that Mass.R.Prof.C. 3.8(f) should be broadly interpreted, consistent with Matter of a Grand Jury Investigation, 407 Mass. 916, 556 N.E.2d 363, to apply to a subpoena for the bank records of an attorney. An attorney's bank records may, collectively, contain a wealth of confidential information, including, among other things, personal information about clients or potential clients who may have consulted an attorney, investigators an attorney may have hired, and the amount of money an attorney has expended to defend a client.
In theory, a prosecutor could compile and understand an attorney's activities associated with his or her law practice, with perhaps frightening detail, if the prosecutor was able to review an attorney's detailed banking records over multiple years.
By contrast, the Commonwealth argues, first, that it did not violate Attorney Grossberg's or Forlizzi's rights in obtaining Attorney Grossberg's bank records because individuals do not have constitutionally protected rights in bank records and an attorney's bank records do not contain information protected by the attorney-client privilege. See United States v. Miller, 425 U.S. 435, 442, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) (concluding no legitimate expectation of privacy existed in contents of bank records); Commonwealth v. Cote, 407 Mass. 827, 834, 556 N.E.2d 45 (1990). See also Reiserer v. United States, 479 F.3d 1160, 1165 (9th Cir.2007) (recognizing no attorney-client privilege between a bank and a depositor); Harris v. United States, 413 F.2d 316, 319-20 (9th Cir.1969) (noting that bank check is not a confidential communication, as is the consultation between attorney and client); O'Donnell v. Sullivan, 364 F.2d 43, 44 (1st Cir.1966) (determining bank records not protected by attorney-client privilege, as bank records had already been disclosed to a third party, the bank).
Next, the Commonwealth contends that under the plain meaning of the terms of Mass.R.Prof.C. 3.8(f), there was no violation of the rule. The Commonwealth argues that it never subpoenaed an attorney to appear in court or at a grand jury to present evidence about the attorney's past or present client. Moreover, the Commonwealth contends that the scope of Rule 3.8 is narrower than its predecessor PF-l5 and should not be construed as applying to third parties, especially where the third party cannot be considered an " agent" of the attorney. Finally, the Commonwealth contends that since Mass. . R.Prof.C. 3.8(f) is a disciplinary rule, it should be strictly construed because it has serious disciplinary consequences for a prosecutor that may affect his or her career. See Matter of a Grand Jury Investigation, 407 Mass. 916, 919 n. 7, 556 N.E.2d 363 (1990) (judge should report violation of Rule to the Board of Bar Overseers and bar counsel).
As a threshold matter, this Court rejects the argument that Rule 3.8(f) should be read more restrictively than PF-15 in regard to the scope of those falling under its protective umbrella. The Commonwealth cites no authority, in case law or regulatory history, for its claim that Rule 3.8(f) does not encompass, at a minimum, agents of an attorney to include paralegals, secretaries, investigators or experts working as part of a defense team. An investigator, for instance, acts at the direction of the attorney in exploring and formulating the defense of a case. It is axiomatic that an attorney develops a defense strategy in consultation with and often based on a client's privileged communications, and directs others to build the defense. " Turning members of the defense team into government witnesses may undermine a client's trust in, and his willingness to communicate with, his attorney." Matter of Grand Jury Investigation, 407 Mass. at 919, 556 N.E.2d 363.
That said, the Court concludes that the Commonwealth's claim that Rule 3.8(f) cannot fairly be said to include third-party record holders has merit. A subpoena to a third-party record holder or custodian does not implicate the same protective concerns. A third-party record holder, such as a bank, cannot reasonably be construed as part of a " defense team, " nor likely would a bank conduct its activities to facilitate a defense strategy. The fact that the account holder happens to be an attorney does not, standing alone, convert the bank into an agent for purposes of Rule 3.8(f). See Harris v. United States, 413 F.2d 316, 318 (9th Cir.1969); Commonwealth v. Senior, 433 Mass. 453, 455-56, 744 N.E.2d 614 (2001) (hospital not an agent of defendant in conducting blood-alcohol test at request of attorney so as to implicate PF-15).
Unlike members of a defense team, there is little if any " chilling effect" to the attorney-client relationship involved in a subpoena directed at records held by a third party such as a bank. Bank records may show the date, amount and source of monies received from or on behalf of a client, or monies expended by counsel as part of the defense of a case (to the extent a check noted the client's name), but generally no more. The potential infringement on the attorney-client relationship occasioned by such a subpoena is significantly less than would be involved with access to a member of a defense team. Although appreciative of the thorough and thoughtful arguments advanced by the defendants for expanding the reach of Rule 3.8(f) to include the subpoenas at issue here, this Court declines the invitation to do so under all of the facts and circumstances of the instant case. Cognizant of the many interests considered in the formulation of professional rules of conduct and the care exercised in drafting such rules, any expansion is best left with the Supreme Judicial Court in its rule-making capacity.
I have considered whether this case presents an issue worthy of reporting a question under Rule 34 of the Massachusetts Rules of Criminal Procedure. Questions of law that are reported prior to trial should be questions of importance to the general public or questions of substantial significance that have not been previously considered by Massachusetts appellate courts. Commonwealth v. Bell, 67 Mass.App.Ct. 266, 267 n. 3, 853 N.E.2d 563 (2006); Commonwealth v. Bankert, 67 Mass.App.Ct. 118, 120-21, 852 N.E.2d 132 (2006). On the one hand, the Commonwealth's use of subpoena power here is not sui generis, the Attorney General's office disclosing that since 1994, it has issued subpoenas to a bank for records of an attorney in 29 cases without complying with Rule 3.8(f) or PF-15. On the other hand, little of probative value was uncovered in the instant case, and the Commonwealth acted in response to a request for investigation from an experienced Superior Court judge who expressed her deep concern that justice had been perverted by misconduct of one or more defendants or witnesses, and possibly their attorneys as well. Under such circumstances, the Commonwealth acted in good faith in conducting its investigation. Whether it overreached by issuing subpoenas focused on attorney bank accounts is a matter that can be addressed on appellate review if a conviction results.
2. Access to Attorney Tax Records
Forlizzi contends that dismissal of the indictments against him is also warranted because the Commonwealth unethically and unlawfully obtained the tax records of Attorney Grossberg through the IFB and the Department of Revenue. He argues that the Commonwealth had no purpose for requesting the attorneys' tax records. For these reasons, among others, Forlizzi contends that the indictments against him should be dismissed either with or without prejudice.
Fred Battista argues that the Commonwealth's prosecutors violated Mass.R.Prof.C. 3.8(f) by obtaining the attorneys' tax records.
The Massachusetts Insurance Fraud Bureau is a statutory entity created to prevent and investigate fraudulent insurance transactions. St.1990, c. 338; St.1991, c. 398, § 99; St.1996, c. 427, § 13; and St. 202, c. 279, § 5. Focused on fraudulent claims in automobile and workers' compensation insurance, the IFB is permitted access to a variety of state databases that are otherwise confidential, " when the same are relevant to any said insurance fraud bureau investigation." St.1996, c. 427, § 13(d).
As noted earlier, tax records of the named defendants and their attorneys were accessed as part of the obstruction investigation following Judge Quinlan's referral. When the assigned prosecutor was unable to access DOR records through normal investigative channels, he directed the investigator to seek access through the IFB. Attorney Laura Kessler of the IFB authorized a request to the DOR because the underlying investigation involved suspected fraudulent insurance claims and Kessler considered the obstruction investigation " to be another necessary step in connection with the referral of the fraudulent insurance transactions to the [Attorney General's Office.]"
This claim is unpersuasive for several reasons. First, it is beyond cavil that the insurance fraud investigation had concluded with the judgments of acquittal directed by the Court after trial, the Commonwealth not seeking an appeal of Judge Quinlan's order. While the obstruction investigation flowed out of the fraud case and involved the same parties, it was based on separate conduct and focused on different crimes (perjury, subornation, and conspiracy to suborn perjury or obstruct justice). Thus, the object of the grand jury investigation was an investigation into criminal activities designed to thwart justice through the courts and had nothing to do with the validity of insurance claims. The mere fact that Judge Quinlan's concern about a fraud perpetrated on the court arose out of the prosecution of an IFB case was a happenstance— it does not justify the use of special powers aimed at preventing or prosecuting insurance fraud.
Second, even accepting the Commonwealth's claim that the obstruction investigation was related to the IFB, it is inconceivable (at least to this Court) that the Commonwealth believed that Attorney Grossberg's (or other counsel) tax records were reasonably calculated to provide probative evidence of perjury, obstruction, or a related conspiracy. The tax request covered a five-year period of time (2007-2011) notwithstanding the fact that Attorney Grossberg did not enter an appearance for Forlizzi until August 2009. Further, it seems unlikely in the extreme that an attorney would itemize deductions in their tax returns so as to reveal bribes or payoffs to witnesses. Even if the attorneys who had been involved in the insurance fraud trial were rightfully potential targets of the obstruction investigation (and the Court concludes there was a good faith basis for investigating counsel based on Judge Quinlan's referral), seeking tax records through the IFB constituted prosecutorial overreaching under the circumstances presented here.
The remedy for such a violation is likely broad, as it is in instances where there has been a violation of Rule 3.8(f). See Matter of Grand Jury Investigation, 407 Mass. at 919, 556 N.E.2d 363 (upon a finding of violation, " the judge has a full panoply of remedies available ... [including] ... in an especially egregious case, the dismissal of indictments"). Here, dismissal is not warranted. The Commonwealth did not make actual use of any information obtained through the tax records and does not intend to use them as evidence in the upcoming trial. Consequently, an order suppressing such evidence is not necessary. Further, there is no evidence demonstrating that the grand jury was likely impaired or influenced by virtue of the tax records such that an order for representment of the case to a different grand jury is necessary. Finally (and significantly), dismissal under the circumstances here would result in an unearned and undeserved boon to the defendants. Having earlier obtained directed verdicts based on the very alleged misconduct that has resulted in their new indictments, they should not receive the benefit of dismissal because of an overzealous prosecutorial effort.
Based on the Commonwealth's representation that it will not make use of any tax information acquired from the IFB request for attorney tax records, the Court declines to impose further sanctions.
ORDER
The defendants' motion to dismiss is DENIED.