In the Matter of a Grand Jury Investigation.
Opinion
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1285
IN THE MATTER OF A GRAND JURY INVESTIGATION.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2021, a Superior Court judge issued a search warrant
which authorized the State police officials assigned to the
Office of the Attorney General to freeze two bank accounts. The
judge determined, based on information contained in an
affidavit, that there was probable cause to believe that the
funds contained in these accounts constituted evidence of a
variety of crimes. In 2023, after an unsuccessful civil suit,1
the account holder moved for leave to intervene in an ongoing
grand jury investigation of the matter. The account holder also
filed a motion for return of property. After a hearing, a Superior Court judge denied the verified motion for leave to intervene and did not address the motion for return of property.2 The judge also denied a subsequent motion for reconsideration. The account holder appeals from the denial of both the motions for leave to intervene and for reconsideration.3 We affirm.
Here, the judge held that the account holder's request to intervene was neither supported by case law nor statutory authority. He further noted that it was premature to even test the validity of the underlying search warrant. At bottom, the judge denied the motion "based solely" on the account holder's lack of standing.
The Attorney General maintains that this is an impermissible interlocutory appeal. The argument is not without weight in that, in the event of an indictment, as the judge noted, the validity of the search warrant may be tested. That
time has yet to arrive.4 See Maddocks v. Ricker, 403 Mass. 592, 597 (1988) ("there is no right to appeal from an interlocutory order unless a statute or rule authorizes it"). The account holder points us in the direction of Mass. R. Civ. P. 24 (a), 365 Mass. 769 (1974), which permits an interlocutory appeal of a denied motion to intervene. Reznik v. Garaffo, 466 Mass. 1034, 1035 (2013); Holland Brands SB, LLC v. Bd. of Appeals of Boston, 103 Mass. App. Ct. 740, 743 (2024).
The Attorney General contends that this argument is waived because the account holder's reliance on rule 24 (a) did not appear until it was raised in the motion to reconsider. See Commonwealth v Gilday, 409 Mass. 45, 46 n.3 (1991). However, we need not resolve the waiver issue because Mass. R. Civ. P. 24 (a) does not apply outside the realm of civil litigation, which this is not. Rather, grand jury proceedings are governed by Mass. R. Crim. P. 5, as appearing in 442 Mass. 1505 (2004). Rule 5 provides no mechanism for a putative target of a grand jury investigation to intervene in that investigation, and the account holder does not claim otherwise. In this sense, even if the appeal is not interlocutory, the account holder lacks
standing or a mechanism to seek intervention. Indeed, the Supreme Judicial Court has recognized that "intervention" is a "concept foreign to criminal procedure." Republican Co. v. Appeals Court, 442 Mass. 218, 227 n.14 (2004).
Finally, the account holder makes a facial and an asapplied constitutional challenge to G. L. c. 276, § 3. Although it does not appear that a single sentence in the motion to intervene, which claimed that the statute was unconstitutional, properly raises the claims he now makes on appeal, we need not resolve the question of waiver because the judge did not rely on G. L. c. 276, § 3, as basis for his decision. We sometimes have discretion to review claims raised for the first time on appeal, see Commonwealth v. Freeman, 352 Mass. 556, 563–564 (1967), but such claims usually relate to a judge's reasoning and justification for the resolution of the matter that was before the court. Here, the judge denied the motion to intervene solely on the basis of standing, and nothing was justified or based on G. L. c. 276, § 3.
We further note that G. L. c. 276, § 3, which authorizes the Commonwealth to retain funds seized pursuant to a search warrant, also authorizes the return of property when that property is no longer needed as evidence and where it is not subject to forfeiture. See Commonwealth v. James, 493 Mass. 828, 833 (2024). See also Commonwealth v. Sacco, 401 Mass. 204,
207 n.3 (1987) ("Property seized pursuant to a search warrant must be restored to its owners when it is no longer needed"). However, that time has yet to come in this case, and a judicial order permitting intervention into the executive's investigative prerogative would raise art. 30 concerns. See art. 30 of the Massachusetts Declaration of Rights ("the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men").
Order denying verified motion for leave to intervene affirmed. Order denying motion for
reconsideration affirmed. By the Court (Meade,
Hodgens & Toone, JJ.5),
Clerk
Entered: May 5, 2025.
Free access — add to your briefcase to read the full text and ask questions with AI
In the Matter of a Grand Jury Investigation. (In the Matter of a Grand Jury Investigation.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.