Judges: Gants
Filed Date: 2/8/2013
Status: Precedential
Modified Date: 11/10/2024
The issue presented on appeal is whether it is a crime under G. L. c. 268, § 13B, as appearing in St. 2006, c. 48, § 3, for a parolee to mislead a parole officer who is investigating the parolee’s possible failure to comply with parole conditions. We conclude that it is, and therefore affirm the defendant’s convictions.
Background. In October, 2007, the defendant was on parole from his State prison sentence for armed robbery, and on proba
On July 1, 2008, the defendant was indicted for misleading a parole officer with the intent to obstruct a criminal proceeding, in violation of G. L. c. 268, § 13B; and for being a habitual criminal, in violation of G. L. c. 279, § 25. The defendant waived his right to a trial by jury, and was tried by a judge.
The evidence at trial revealed that in October, 2007, the defendant had a romantic relationship with Yudrey Millares, the mother of four young children, which he had failed to reveal to his parole officer. Millares often brought all four of her children with her to stay the night at the defendant’s apartment in Marlborough. The defendant also occasionally visited Millares at her apartment in Framingham while her children were present. On the Halloween night at issue, the defendant came to Millares’s apartment, joined Millares and her children in walking door to
The judge denied the defendant’s motion for a required finding of not guilty and found the defendant guilty of violating G. L. c. 268, § 13B. At a second bench trial, the judge found the defendant guilty of being a habitual offender under G. L. c. 279, § 25, and sentenced him, as required under § 25, to the maximum penalty under § 13B, a State prison term not to exceed ten years.
Discussion. At the time of the alleged offense in 2007, G. L. c. 268, § 13B, as appearing in St. 2006, c. 48, § 3 (§ 13B), provided, in relevant part:
“Whoever, directly or indirectly, willfully ...(c) misleads, intimidates or harasses another person who is (i) a witness or potential witness at any stage of a criminal investigation, grand jury proceeding, trial or other criminal proceeding of any type; (ii) a person who is or was aware of information, records, documents or objects that relate to a violation of a criminal statute, or a violation of conditions of probation, parole or bail; (iii) a . . . probation officer or parole officer; [or] (iv) a person who is or was furthering a criminal investigation, grand jury proceeding, trial or other criminal proceeding of any type; . . . with the intent to impede, obstruct, delay, harm, punish or otherwise interfere thereby with a criminal investigation, grand jury proceeding, trial or other criminal proceeding of any type shall be punished.”3
The defendant claims that the judge erred in denying the motion
The phrase, “criminal proceeding of any type,” is not defined in the statute, so we must look to our traditional principles of statutory interpretation to determine its meaning. Perhaps the most fundamental principle “is that a statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.” Harvard Crimson, Inc. v. President & Fellows of Harvard College, 445 Mass. 745, 749 (2006), quoting Hanlon v. Rollins, 286 Mass. 444, 447 (1934). “Where possible, we construe the various provisions of a statute in harmony with one another, recognizing that the Legislature did not intend internal contradiction.” DiFiore v. American Airlines, Inc., 454 Mass. 486, 491 (2009). “If a sensible construction is available, we shall not construe a statute to make a nullity of pertinent provisions or to produce absurd results.” Flemings v. Contributory Retirement Appeal Bd., 431 Mass. 374, 375-376 (2000).
In applying these principles, we note that § 13B was amended and rewritten in 2006 to expand the scope of the conduct prohibited, the classes of victims protected, and the types of criminal proceedings covered. See Hrycenko v. Commonwealth, 459 Mass. 503, 508 (2011); Commonwealth v. Hamilton, 459 Mass. 422, 435 (2011).
The defendant seeks to distinguish matters of parole from “criminal proceeding[s]” by noting that a parolee alleged to
We have also considered whether the Legislature intended a “criminal proceeding” to commence in the context of parole revocation only after a formal allegation has been lodged of a
Having determined that an investigation of a possible parole violation is a “criminal proceeding” within § 13B, we turn to the question whether the evidence was sufficient to support a finding that the defendant misled the parole officer. The word “misleads” is not defined in § 13B, and we have not before had the opportunity to define it. See Commonwealth v. Fortuna, 80 Mass. App. Ct. 45, 50-51 (2011) (first reported case involving prong of § 13B prohibiting one from wilfully misleading police officer with intent to impede criminal investigation). Under Federal law, the statute prohibiting witness tampering, 18 U.S.C. § 1512(b) (2006 & Supp. II 2008), punishes one who “engages in misleading conduct toward another person” with the intent, inter alia, to “influence, delay, or prevent the testimony of any person in an official proceeding,” or “hinder, delay, or prevent” information from being communicated to a law enforcement officer or judge regarding the commission of a Federal
“(A) knowingly making a false statement; (B) intentionally omitting information from a statement and thereby causing a portion of such statement to be misleading, or intentionally concealing a material fact, and thereby creating a false impression by such statement; (C) with intent to mislead, knowingly submitting or inviting reliance on a writing or recording that is false, forged, altered, or otherwise lacking in authenticity; (D) with intent to mislead, knowingly submitting or inviting reliance on a sample, specimen, map, photograph, boundary mark, or other object that is misleading in a material respect; or (E) knowingly using a trick, scheme, or device with intent to mislead.”
18 U.S.C. § 1515(a)(3) (2006). In defining what it means to “mislead” another person under § 13B, we hereby adopt this definition of “misleading conduct.”
Applying this definition, we conclude that the judge did not err in denying the defendant’s motion for a required finding of not guilty. In reviewing such a denial, we ask “whether, viewing the evidence in the light most favorable to the Commonwealth, 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt’ ” (emphasis in original). Commonwealth v. Perez, 460 Mass. 683, 702 (2011), quoting Commonwealth v. Latimore, 378 Mass. 671,677 (1979). Where, as here, the parole officer was investigating a possible violation of her directive that the defendant remain home after 6 p.m. on Halloween to avoid congregating with children who were out trick-or-treating, there was abundant evidence for a rational trier of fact to conclude that the defendant misled his parole officer with the intent to obstruct her investigation. On being asked why he left his home, the defendant told his parole officer that he had attended an AA meeting in Framingham and that the GPS information reflecting that he had been in an apartment complex must have arisen from a
Conclusion. We affirm the defendant’s convictions.
So ordered.
Yudrey Millares testified pursuant to a grant of immunity.
The judge ordered the sentence to be served concurrently with the sentence the defendant was serving for his probation violation.
GeneralLaws c. 268, § 13B (§ 13B), was twice amended in 2010, but the amendments do not bear on the issue on appeal. See St. 2010, c. 256, § 120; St. 2010, c. 92, § 11.
Prior to the revision in 2006, the relevant provision of § 13B, as amended through St. 1996, c. 393, §§ 2-4, imposed criminal sanctions on those who:
“directly or indirectly, willfully endeavorfed] by means of a gift, offer*369 or promise of anything of value, or by misrepresentation, intimidation, force or express or implied threats of force, to influence, impede, obstruct, delay or otherwise interfere with any witness or juror in any stage of a trial, grand jury or other criminal proceeding or with any person furnishing information to a criminal investigator relating to a violation of a criminal statute of the commonwealth, and whoever injures any person or damages his property on account of the giving of such information to a criminal investigator or on account of testimony given at a trial, grand jury, or other criminal proceeding.”
See Hrycenko v. Commonwealth, 459 Mass. 503, 508 n.6 (2011) (prior to 2006, statute “only covered intimidation of a witness, juror, or person furnishing information to an investigator”); Commonwealth v. Hamilton, 459 Mass. 422, 433 (2011) (“prior to the 2006 amendment, § 13B . . . criminalized . . . interference, actual or threatened, with a witness or juror during the pendency of a criminal proceeding” [emphasis in original]).
We acknowledge that a parole revocation “is not a stage of a criminal prosecution.” Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973). But we also affirm that, as amended in 2006, “§ 13B is directed at proceedings within the criminal justice system,” Commonwealth v. Gallant, 453 Mass. 535, 542 (2009), and matters of parole are undoubtedly part of the criminal justice system. See Commonwealth v. Pagan, 445 Mass. 161, 168 (2005) (“We have made clear that parole is a form of punishment”); Massachusetts Parole Bd. v. Brusgulis, 403 Mass. 1010, 1011 (1989), citing Morrissey v. Brewer, 408 U.S. 471, 477 (1972) (“Parole constitutes a variation on imprisonment, . . . and not an unrestrained release from confinement” [emphasis in original]); Hartford v. Hartford, 60 Mass. App. Ct. 446, 453 (2004) (parole officer’s “contacts with the parolee and the members of the community in which the parolee resides ... are in the nature of an ongoing investigation”). We conclude that the Legislature in amending § 13B in 2006 must have intended to include some proceedings that were not a “stage of a criminal prosecution,” Gagnon v. Scarpelli, supra, because § 13B as amended did not refer to any “stage” of a criminal proceeding, but to a “criminal proceeding of any type.” See Hrycenko v. Commonwealth, supra at 509-510 & n.9 (specifically noting that “ ‘at any stage of a . . . proceeding’ language in the 2006 statute applies only to witnesses or potential witnesses” under § 13B (1) (c) (i), and not to other classes of protected victims, including parole officers).
Although 18 U.S.C. § 1001 (2006), the Federal statute punishing “materially false, fictitious, or fraudulent statement[s] or representation[s] ” made “in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States,” covers a broader scope of proceedings than does § 13B, we note that several Federal Circuit Courts of Appeals have held that materially false statements made to parole officers by individuals on supervised release constitute criminal violations of this statute, even before a formal allegation of a parole violation has been brought. See, e.g., United. States v. Curtis, 237 F.3d 598, 605 (6th Cir. 2001) (“false statements to a parole officer clearly fall within the scope of 18 U.S.C. § 1001”); United States v. Lamberti, 847 F.2d 1531, 1536 (11th Cir.), cert, denied, 488 U.S. 970 (1988) (overstatement of income to Parole Commission “impaired the Parole Commission’s ability to determine whether [defendant] was fulfilling the conditions of parole,” and this was “enough to trigger the prohibition of § 1001”).
We note that 18 U.S.C. § 1512(b) (2006 & Supp. II 2008), provides a narrower set of events that the defendant must intend to influence than the “criminal proceeding^] of any type” referenced in G. L. c. 268, § 13B.