WOLOHOJIAN, J.
Although hypothetical questions are the stock in trade of law schools, it is rare to find a criminal prosecution stemming from the world of make-believe. But such we confront
Background.
On October 21, 2009, in the presence of Federal Bureau of Investigation (FBI) Special Agent Jeffrey Wood, Olive placed a telephone call to the defendant, recorded and transcribed in its entirety as follows:
This apparently was not the first conversation Olive had had with the defendant that day. However, the content of that earlier conversation was — as the Commonwealth concedes — inadmissible hearsay because Olive did not testify and the Commonwealth sought to introduce it through Special Agent Wood. We therefore do not include the substance here, although we discuss it later.
Olive used an FBI-provided automobile, outfitted with a hidden camera and recording equipment, to drive to Franklin Street. Special Agent Wood and Detective Stephen Withrow of the Lynn police department followed in an unmarked car. Another FBI Special Agent, Darwin Suelen, followed separately. State police Trooper Jesse Sweet and Lynn police Detective Oren Wright drove directly to Franklin Street in order to observe from that vantage point.
When Olive arrived at Franklin Street, she saw to her surprise that the defendant was with a man she referred to as "Nuck."
The defendant got into the rear of the car;
While Olive continued to drive following Nuck's directions, she and Nuck conversed about various personal matters.
The defendant can be heard to say next, "See you right back" while opening the back door of the car.
Over two minutes passed. Nuck then returned to the car, and opened the front passenger door (where he had been sitting) looking for something:
Left alone again in the car, Olive remarked to herself, "All right. Got Nuck's number now." She then waited for Nuck and the defendant to return.
The agents concluded that they had observed a possible "rip"
Trooper Millett saw that a car (completely unrelated) was driving close behind the black Jetta. Using that fact, he stopped both cars on the pretext that he had observed an incident of road rage. To further the pretext, Trooper Millett first approached the unrelated car and obtained that driver's license and registration. He also asked the driver of that car to wait. Trooper Millett then approached the black Jetta. After obtaining the defendant's license and registration, Trooper Millett asked the defendant and Nuck to get out of the car, and pat frisked them. He removed the $2,200 wrapped with a rubber band from one of the defendant's pockets, plus $400 in loose cash from another. He removed the $1,800 wrapped with a rubber band from Nuck's pocket. Trooper Millett asked about the large amount of cash he had found, and the defendant told him that it was for rent. Nuck said that he intended to buy a vehicle. Trooper Millett returned the $400 to the defendant but kept the two rubber-banded bundles of cash.
Agitation and invention ensued. According to Trooper Millett, both men became very concerned by the fact that he had taken the money. He explained to them that he "would just start a civil forfeiture proceeding for the money." Because they continued to protest, Trooper Millett gave them a receipt, which he signed "Trooper J. Edgar Hoover."
The defendant agreed to return to the barracks the next day to be interviewed as part of the supposed investigation. That interview was conducted by Lieutenant Hughes and FBI Special Agent Wood, and they together maintained the fiction that they were conducting an investigation into Trooper Millett. The interview lasted about one-half hour.
The defendant initially responded that it came from "my trust" and that he had earned it while "working under the table." Special Agent Wood asked whether the defendant could provide receipts, and the defendant said that he would be able to provide bank statements. Special Agent Wood asked that the statements be sent to him, and the defendant agreed. In response to further questioning, the defendant stated that he was going to use the money to buy a car. Later in the interview, the officers returned to the topic of the source of the money:
Discussion. After a three-day trial in 2012, the defendant was convicted by a jury of larceny by means of false pretenses over $250, in violation of G. L. c. 266, § 30, for stealing money belonging to the FBI. He also was convicted of misleading a police officer with the intent to impede, obstruct, or otherwise interfere with a criminal investigation, in violation of G. L. c. 268, § 13B.
1. Larceny by false pretenses.
As we have noted, the crime requires proof that the defendant made a false statement of fact.
For the reasons that follow, we disagree with the defendant's argument that there was insufficient evidence that (a) he made a false statement of fact (b) with the requisite scienter.
We begin by noting that Olive did not testify. Thus, although there appears to have been a conversation between Olive and the defendant before the one in which they agreed to meet on Franklin Street, its contents were, as the Commonwealth concedes, inadmissible hearsay. The judge correctly sustained the defendant's objections to Special Agent Wood's testimony directly stating what Olive told him about that initial conversation.
"When analyzing whether an error was harmless beyond a reasonable doubt, we consider whether, based on the totality of the record before us, weighing the properly admitted and the improperly admitted evidence together, we are satisfied beyond a reasonable doubt that the tainted evidence did not have an effect on the jury and did not contribute to the jury's verdicts. It is not enough that other, properly admitted evidence was sufficient to convict the defendant or that the inadmissible evidence was consistent with the admissible evidence. An error is harmless beyond a reasonable doubt only when other properly admitted evidence of guilt is overwhelming, in the sense that it is so powerful as to nullify any effect that the improperly admitted evidence might have had on the fact finder or the findings" (quotations and citations omitted). Ibid.
Here, the properly-admitted evidence was sufficient to prove that the defendant made a false statement of fact for purposes of the larceny charge, but that evidence was far from overwhelming. The only direct evidence of the defendant's statements was (1) "instead come scoop me on Franklin," (2) "Yeah, Franklin Street. You know Franklin Street, right? Call me when you're on Franklin Street. I will come out — I will come outside," (3) "All right. Cool good. Count it out," (4) "So this — this right here, this is 22, and this right here is 18," and (5) "See you right back." The first three of these were not representations of fact. Moreover, there was no evidence that the defendant knew any of the first four statements was false. Indeed, the defendant met Olive on Franklin Street as he had proposed, and there were in fact two bundles of cash, one containing $2,200 and the other $1,800. The question therefore reduces to whether the fifth statement, "See you right back," was a false statement of fact.
Although a promise of future performance alone cannot constitute a false statement of fact for purposes of the larceny statute, it can do so if it is accompanied by a false statement of past fact, whether express or implied. See id. at 185; Commonwealth v. True, 16 Mass.App.Ct. 709, 711-713 (1983) (reversing conviction where insufficient evidence that factual statements made in purchase and sale agreement were false at time made); Commonwealth v. Cheromcka, 66 Mass. App. Ct. at 781 (defendant's approval of credit card bills that were submitted to school district for payment contained implied misrepresentation that items that had been purchased in past were for school use).
Here, the statement, "See you right back," contained an implied representation of fact that the drugs the defendant had promised to sell were nearby. However, that implied representation rested in large — and almost exclusive — part on the inadmissible evidence that the defendant had agreed to sell drugs to Olive. Without the testimony about the gist of Olive's initial conversation — the communication that set the entire transaction in
For these reasons, we conclude that the erroneous admission of the substance of Olive's initial conversation with the defendant was not harmless beyond a reasonable doubt, but that there was sufficient evidence to permit a retrial.
Turning to the element of scienter, there was ample evidence from which a jury could find, beyond a reasonable doubt, that the defendant's actions and statements were intended to lull Olive into believing that he intended to sell her drugs, when in fact he did not intend to do so. See Commonwealth v. Cheromcka, 66 Mass. App. Ct. at 782 (defendant cannot be convicted "absent proof of an intention to deprive at the time of the representation"). Although the fact that the sale did not ultimately occur is not enough alone to prove scienter, Commonwealth v. McCauliff, 461 Mass. 635, 642 (2012) ("the lack of sale, by itself, does not give rise to a permissible inference that no sale of the property was ever intended"), here there was additional evidence of the defendant's intent.
To begin with, as Olive herself noted, Nuck's presence at the scene was an indication that the sale would not happen as arranged. Olive commented on this immediately, and she became optimistic about the prospects of a sale only when she saw Nuck leave and thought she would be able to conduct the transaction with the defendant alone. That optimism rested on a false impression created by the defendant and Nuck; in fact, the defendant and Nuck reunited once out of Olive's sight. In addition, Olive
In sum, we conclude that there was sufficient evidence that the defendant made a false statement of fact with the requisite scienter, but that the admissible evidence of that statement was not so overwhelming as to nullify any effect the improperly admitted evidence might have had on the jury.
2. Misleading a police officer. The indictment charged the defendant with "willfully mislead[ing] another person who is a police officer or federal agent with the intent to impede, obstruct or otherwise interfere with a criminal investigation," in violation of G. L. c. 268, § 13B, as it existed at the time of the offense.
The defendant argues that his conviction should be reversed because (1) there was insufficient evidence of a criminal investigation because the investigation was a sham, and (2) the evidence was insufficient to prove that he acted with the requisite intent.
General Laws c. 268, § 13B, is "fundamentally a `witness intimidation statute'" and is "concerned primarily with countering the effect of witness intimidation on the successful prosecution of criminals." Commonwealth v. Morse, 468 Mass. 360, 367 (2014). However, the statute was expanded in 2006 to "outlaw[] `mislead[ing]' and `harrass[ing]' conduct, in addition to the `threatening' and `intimidating' conduct that the prior version of the statute had proscribed." Id. at 369, quoting from G. L. c. 268, § 13B. We are concerned here only with the "misleading" prong of the statute, which prohibits directly or indirectly (1) wilfully misleading (2) a police officer, Federal agent, or investigator (3) "with the intent to impede, obstruct, delay, harm, punish, or otherwise interfere thereby with a criminal investigation." G. L. c. 268, § 13B(1)(c).
For purposes of the statute, the Supreme Judicial Court has adopted the Federal definition of "misleading conduct" as used in 18 U.S.C. § 1512(b) (2006):
Commonwealth v. Figueroa, 464 Mass. 365, 372 (2013), quoting from 18 U.S.C. § 1515(a)(3) (2006).
"Each aspect of the definition adopted suggests a knowing or intentional act calculated to lead another person astray. Objectively misleading conduct, as defined, is not enough, however, to establish the offense. In addition to the requirement that there be knowing or intentional conduct that is objectively misleading as defined, a statutory violation is not established unless there is also proof of a defendant's specific intent to `impede, obstruct, delay, harm, punish, or otherwise interfere thereby' with a criminal investigation." Commonwealth v. Morse, 468 Mass. at 372, quoting from G. L. c. 268, § 13B(1)(c)(v). "[S]uch specific intent has been ascertained inferentially from a defendant's affirmative misrepresentations, plainly and demonstrably false, to law enforcement authorities." Id. at 373. Where a defendant's statements satisfy the definition of misleading conduct, and there is sufficient evidence of his specific intent, "it does not matter that [the defendant] fail[s] to succeed in misleading" his auditor. Commonwealth v. Figueroa, 464 Mass. at 373. See Commonwealth v. Casiano, 70 Mass.App.Ct. 705, 709 (2007), quoting from Commonwealth v. Robinson, 444 Mass. 102, 109 (2005) ("the statute punishes anyone who `wilfully endeavors' to intimidate a witness; it does not require that the intimidation be successful").
With these general principles in hand, we turn to the defendant's specific arguments.
But a sham investigation into a fake crime is something different. Here, the investigation into Trooper Millett was an invention designed solely to elicit self-incriminatory statements from the defendant without providing any of the protections to which he might be entitled were the true purpose of the interrogation revealed. Not only did the investigation not exist, but no such investigation was intended or contemplated. Nor could the investigation possibly "result in criminal-type sanctions," ibid., because Trooper Millett's actions were themselves a ruse. An invention piled upon a fabrication is not a "criminal investigation" within the meaning of the statute particularly where, as here, the only person who was, or could have been, led astray was the defendant. The relationship of the circumstances here "to the fundamental anti-witness-intimidation purpose of § 13B is at best attenuated." Commonwealth v. Morse, 468 Mass. at 375.
The Commonwealth argues that, although the investigation into Trooper Millett was a sham, the drug investigation was real and it was a "criminal investigation." This contention is inarguably true. But, as the Commonwealth agrees, the defendant knew nothing about that investigation and, indeed, was kept deliberately in the dark about it. The defendant accordingly cannot be said to have formed an intent to interfere with it.
b. Specific intent. Relying on Commonwealth v. Morse, supra, the defendant argues that there was insufficient evidence to prove his specific intent to mislead. In Morse, however, the defendant made no affirmative misrepresentation to police. Instead, he merely denied his guilt when questioned by officers. There was "no evidence of affirmative misdirection on the defendant's part. The defendant's statement, the simple word `no,' was an exculpatory denial, not a content-laden fabrication designed to send police off course, thereby interfering with their investigation." Id. at 374. In those circumstances, the court held that there was insufficient evidence of the defendant's specific intent to mislead. Id. at 374-375.
Here, by contrast, there was evidence of "content-laden fabrication," not simply an exculpatory denial of wrongdoing. The defendant, having made the decision to go the police in order to reclaim money he had obtained in a planned drug transaction, decided to lie about the provenance of the funds even after having been informed that the information was needed to "show in Court." His various explanations for the money were that it came from a trust, that it came from his bank accounts, and that it came from working under the table as a commercial fisherman. These were affirmative misrepresentations the jury could reasonably conclude were made to send the police off course. Had there been a criminal investigation within the meaning of the statute, the evidence of the defendant's intent to impede or interfere with it would have been sufficient.
Conclusion. The defendant's convictions for larceny by false pretense, G. L. c. 266, § 30, and misleading a police officer, G. L. c. 268, § 13B, are reversed, and the verdicts are set aside. The case is remanded for further proceedings consistent with this opinion.
So ordered.