Cola v. Reardon
| Decision Date | 26 March 1986 |
| Docket Number | No. 85-1324,85-1324 |
| Parties | Neil R. COLA, Plaintiff, Appellant, v. Charles H. REARDON, Sheriff of Essex County, Defendant, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
Stephen M. Perry with whom Thomas D. Edwards and Casner, Edwards & Roseman, Boston, Mass., were on brief, for plaintiff, appellant.
Francis L. Robinson, Asst. Atty. Gen., with whom Francis X. Bellotti, Atty. Gen., Boston, Mass., were on brief, for defendant, appellee.
Before COFFIN, ALDRICH and TORRUELLA, Circuit Judges.
This is an appeal from the denial of a habeas petition filed by Neil R. Cola to challenge his state court conviction under a Massachusetts statute. Appellant's central contention is that he was not convicted by a jury but rather by a state appellate tribunal on a theory of guilt never raised at trial. Thus, because due process requires guilt to be determined based on the case as presented to the jury, Cola argues that his conviction was unconstitutionally affirmed on a theory of guilt not set forth at trial. Due to the Supreme Court's decision in Dunn v. United States, 442 U.S. 100, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979), and because we are constrained to apply the Massachusetts Appeals Court interpretation of state law, we are compelled to grant appellant's request for the issuance of a writ of habeas.
As a result of the complex factual and legal background involved in this case, our opinion will be divided into the following four sections: (1) the factual background as presented at trial; (2) the rationales of the Massachusetts Appeals Court and the district court below; (3) analysis of appellant's due process claim; and (4) issues raised by the Commonwealth on appeal.
On December 7, 1982, appellant Cola, then an attorney employed by the Massachusetts Department of Revenue, was charged under separate indictments with two violations of the state's conflict of interest statute, Mass.Gen.Laws ch. 268A. The first indictment ("the financial interest indictment") charged Cola with violating Mass.Gen.Laws ch. 268, Sec. 6, by participating in a matter in which he and his family had a financial interest. The second, ("the agency indictment"), accused him of violating Mass.Gen.Laws ch. 268A, Sec. 4(c), by acting as agent for someone other than the Commonwealth of Massachusetts in a matter in which the Commonwealth and a state agency was a party and had a direct and substantial interest. The charges related to certain business dealings that Cola had become involved in with a friend named Michael Rapp.
After a seven day jury trial in Suffolk Superior Court, Cola was convicted of both charges. His motion for a new trial was denied. For the financial interest conviction Cola was fined $3,000, and for the agency conviction he was sentenced to one year in prison. On appeal to the Massachusetts Appeals Court, both convictions were affirmed, and the Supreme Judicial Court denied Cola's application for further review.
Cola then filed a habeas petition in the United States District Court for the District of Massachusetts, challenging only his conviction under Mass.Gen.Laws ch. 268A, Sec. 4(c) (the agency conviction). He claimed essentially that he had been denied due process because the state appellate court affirmed his conviction under Sec. 4(c) on grounds that were never specified in the indictment nor presented to the jury. Cola also claimed that the court's charge to the jury was faulty in that it did not frame the charge in terms by which the jury could have found Cola guilty of the Sec. 4(c) violation.
The district court rejected Cola's argument, holding that there was no variance between the indictment as limited by the bill of particulars, the proof at trial, and the basis on which the state appeals court upheld the conviction. In short, the district court found that the theory of guilt upon which the state appeals court affirmed had been set forth in the indictment and at trial. Additionally, since the appellant had made no objections to the jury instructions at the time they were given, the district court found that he had clearly waived any right to object under state law. 1 Mass.R.Crim.P. 24(b); Commonwealth v. Pope, 15 Mass.App.Ct. 505, 466 N.E.2d 741 (1983).
For purposes of this review, we will set out the most pertinent facts as we have found them in the record, and in the light most favorable to respondent, the Commonwealth of Massachusetts. Given that the principal stages of trial--the government's proof, the prosecutor's opening and summation, and the judge's charge--essentially focus on two transactions, a $30,000 loan/second mortgage and a $10,000 loan/payback, our discussion will be likewise divided. 2 After reviewing facts or proof adduced at trial, we will also examine the extent to which the indictment, as reduced by the bill of particulars, corresponds to such proof or any other theory of guilt.
While employed as an attorney in the compliance bureau of the Massachusetts Department of Revenue, Neil Cola became acquainted with Michael Rapp, who had visited Cola's office in 1976 with respect to tax difficulties in Rapp's business. Rapp controlled Framingham S & S Corporation, which operated the Sea and Surf Restaurant in Framingham, Massachusetts. The restaurant was seriously delinquent in its payment of meals taxes owed to the Commonwealth. Cola was the attorney for the Commonwealth in charge of collecting such taxes.
Rapp also controlled a related corporation, Framingham Food Services, Inc., which was likewise tax delinquent, these being local property taxes owed to the town of Framingham. Cola was not assigned to collect such property taxes. The town, independently of any action by Cola, threatened to revoke the restaurant's liquor license on December 31, 1979 if the property taxes were not paid. As the Massachusetts Appeals Court noted, the revocation of the liquor license would not only hamper the restaurant's future profitability, but was "an act calculated to cast a pall over the New Year's revels of seven to eight hundred patrons expected by Rapp at that climactic hour." Commonwealth v. Cola, supra, 468 N.E.2d, note 2 at 1097.
In order to avert this eventuality, Rapp filed a Chapter 11 petition for a reorganization, which the Bankruptcy Court granted. In addition to providing for the automatic stay sought by Rapp, the court assigned a federal trustee to oversee the operations of the restaurant. Naturally this situation was undesirable to Rapp for it interfered with his previous autonomous control of his operations.
Rapp realized that he could probably persuade the Bankruptcy Court to remove the trustee if he could deposit with the court $30,000 to protect the business' unsecured creditors. At this point, Cola offered to loan Rapp the money in exchange for a $30,000 interest in a second mortgage on the real estate on which the restaurant sat. Cola arranged with his co-worker John Volpe for the mortgage to be held in the name of Utopia Realty Trust, of which Volpe was trustee. All this time Cola had been assigned to represent the Commonwealth's interests in the bankruptcy proceeding involving Rapp's restaurant.
The hearing on Rapp's motion to remove the trustee was held on January 8, 1980. Immediately prior to the hearing, in the hallway outside the courtroom, Cola delivered to Rapp's attorney a cashier's check for $30,000. Rapp's attorney then presented this check to the court. In response to the court's inquiry, the motion to remove the trustee was opposed by both a representative of the United States Internal Revenue Service and the trustee in the chapter 11 reorganization. The trustee later testified that Cola--who was present throughout the hearing and who had previously been assigned to represent the Commonwealth interests therein--stated to the judge that the Commonwealth had no objections to the removal of the trustee. Cola disputed this, asserting that he had remained silent and was merely in the courtroom as an observer on his lunch hour. Cola further stated he did not represent the interests of the Commonwealth during the time he set aside for lunch. Respondents refer to this as Cola's "lunch hour defense."
The trustee was then removed by the court. Rapp eventually repaid the $30,000 to Cola six months later in June of 1980. The unsecured creditors, by contrast, were never paid. Rapp's tax debt continued to escalate at a rate of six to nine thousand dollars per month. In April of 1981, Rapp converted the chapter 11 proceeding to a chapter 7 liquidation. At that time, his unpaid tax obligation to the Commonwealth exceeded $400,000.
In September of 1980, while the chapter 11 proceeding was still pending, Rapp again needed cash, which Cola volunteered to help him procure. It is disputed whether Rapp expressed his need for the $10,000 only after Cola called Rapp to collect a $2,000 payment due to the Commonwealth. Regardless of his motivation, Cola subsequently contacted John Volpe, who agreed to lend Rapp $10,000 in exchange for a $1,000 premium.
On September 10, 1980, Cola and Volpe brought the $10,000 in cash to the Sea and Surf restaurant and gave it to Rapp. Rapp, in a separate transaction with a gentleman named Garabedian, then exchanged the $10,000 plus some stock owned by Rapp for a $20,000 cashier's check provided by Garabedian. The cashier's check was made out to Cola. Rapp gave the check to Cola. Cola then went to a bank, cashed the check, and distributed the $20,000 as follows: $11,000 to Volpe to repay his loan and pay the premium; $2,000 to the Commonwealth of Massachusetts; $3,500 to Boston Edison; and the remaining $3,500 to Rapp in cash.
With the above background of the evidence presented at trial, we turn to consider one...
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