In re Proceedings Before a Special Grand Jury

542 N.E.2d 316, 27 Mass. App. Ct. 693, 1989 Mass. App. LEXIS 498
CourtMassachusetts Appeals Court
DecidedAugust 17, 1989
DocketNo. 89-P-642
StatusPublished
Cited by4 cases

This text of 542 N.E.2d 316 (In re Proceedings Before a Special Grand Jury) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Proceedings Before a Special Grand Jury, 542 N.E.2d 316, 27 Mass. App. Ct. 693, 1989 Mass. App. LEXIS 498 (Mass. Ct. App. 1989).

Opinion

Smith, J.

This appeal is from a Superior Court judgment holding a grand jury witness (witness) in contempt for refusing to answer questions put to him before a special grand jury in Norfolk County. The judgment stated that the witness was to be committed to the house of correction “until he decides to comply with the [cjourt [ojrder, up to the time that the term of the [sjpecial [gjrand jury expires.” A single justice of this court stayed the judgment of contempt pending resolution of this appeal. The witness claims, among other things, that his refusal to answer the questions posed to him was lawful in that he had properly invoked his privilege against self-incrimination under the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. We agree with the,witness and reverse the Superior Court’s judgment of contempt.

[694]*694The witness is employed as a pari mutuel manager at a race track in the eastern part of the Commonwealth. He was summoned on three separate occasions to appear before a special grand jury convened in Norfolk County. He was informed by the prosecution that the special grand jury was investigating possible illegal gaming operations at the track. On each occasion, the witness was asked questions as to (1) various aspects of his job; (2) his knowledge of track employees’ either taking bets over the telephone or placing bets for persons not on the track’s grounds; and (3) the cashing of winning tickets by individuals other than the ticket holders. To twenty of these questions he pleaded the Fifth Amendment and art. 12, refusing to answer on the ground that doing so would tend to incriminate him.

On April 25, 1989, the Superior Court judge held an in camera hearing on the Commonwealth’s motion to compel the witness to answer the questions put to him by the prosecutor. At that hearing, the judge was informed by the prosecutor of the following facts: A special grand jury was empanelled in Norfolk County on October 24, 1988, for the purpose of investigating illegal gaming operations. An area of the investigation concerned certain activities that had allegedly occurred at the track at which the witness was an employee. One aspect of the investigation involved an inquiry into whether one Richard Boe,1 father of the owner of the track, may have engaged in illegal gaming or gaming-related activity at the track in concert with the general manager of the track and others. More specifically, the special grand jury was investigating whether Boe, while not on track premises, may have relayed bets over the telephone to the general manager, who then placed the bets for Boe at the mutuels windows.2 Another subject of the special [695]*695grand jury’s investigation involved the cashing on October 29, 1987, of a winning twin trifecta ticket in the amount of $60,141.70, at the track. The ticket was cashed by an individual we shall call Goe. The Commonwealth was in possession of information, some of which had already been presented to the special grand jury, that showed that Boe, the general manager, and others had shared in the proceeds of the ticket, that the ticket was cashed in the witness’s office, that the witness was the pari mutuel manager working at the track at the time and that Goe had signed an Internal Revenue Service (IRS) form upon receipt of the winnings. The special grand jury was also investigating the cashing of two winning tickets, each in the amount of $33,247.70, at the track on June 21, 1987, by Goe and another individual we name Hoe. These two individuals were suspected of being “straw men” or “ten percenters” for Boe, the general manager and others not yet identified, who shared in the proceeds of these three tickets. These “straw men” or “ten percenters” cashed the tickets, claiming the winnings on their income tax, thereby concealing the true identity of the person or persons who actually held ownership of the winning racing tickets. Such conduct, if proved, is a Federal crime because it obstructs the assessment and collection of Federal income taxes in violation of 26 U.S.C. § 7206 (1) (1982)3 and 18 U.S.C. § 371 (1988).4

The judge reviewed each question asked of the witness by the prosecutor before the special grand jury. He ruled that the [696]*696witness did not have to answer six of them because the answers might directly incriminate him. As to the other fourteen questions, however, the judge declined to accept the claim of privilege and ordered the witness to answer the questions before the special grand jury.5 That afternoon the witness again appeared before the special grand jury. At that time the prosecutor propounded those questions to which the judge had ordered the witness to respond. The witness refused to answer any of them, once again invoking his privilege against self-incriminatian.

On April 27, 1989, the Commonwealth filed a petition in the Superior Court, seeking to have the witness declared in [697]*697civil contempt of court and incarcerated until such time as he was willing to purge the contempt by testifying before the special grand jury as ordered. After a hearing, the Superior Court judge adjudged the witness to be in contempt.6 This appeal followed.

A grand jury “has a right to every man’s evidence.” Branzburg v. Hayes, 408 U.S. 665, 688 (1972), cited with approval in United States v. Nixon, 418 U.S. 683, 709 (1974). An important exception to this principle is that a witness before a grand jury is entitled to assert his Fifth Amendment privilege against self-incrimination by refusing to answer questions. Counselman v. Hitchcock, 142 U.S. 547, 559 (1892). The claim of the privilege by a witness before a State’s grand jury may be based on fear of a Federal as well as State prosecution. See In re Brogna, 589 F.2d 24, 27 (1st Cir. 1978).

In determining whether a claim of privilege is justified, we apply Federal standards. Taylor v. Commonwealth, 369 Mass. 183, 187 (1975). Powers v. Commonwealth, 387 Mass. 563, 564-565 (1982). “Under these standards, a witness who asserts his privilege cannot be compelled to testify unless it is ‘ “perfectly clear from a careful consideration of all the circumstances in the case that the witness is mistaken, and that the answer[s] cannot possibly have such tendency” to incriminate.’” (emphasis in original). Powers v. Commonwealth, supra, quoting from Malloy v. Hogan, 378 U.S. 1, 12 (1964), quoting from Hoffman v. United States, 341 U.S. 479, 488 (1951). The privilege covers not only answers that would in themselves support a conviction “but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute.” Malloy v.

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91 N.E.3d 688 (Massachusetts Appeals Court, 2018)
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88 Mass. App. Ct. 423 (Massachusetts Appeals Court, 2015)
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Bluebook (online)
542 N.E.2d 316, 27 Mass. App. Ct. 693, 1989 Mass. App. LEXIS 498, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-proceedings-before-a-special-grand-jury-massappct-1989.