Com. v. Adelson, 95-P-1226

• Decision Date: 11 September 1996
• Docket Number: No. 95-P-1226,95-P-1226
• Citation: 666 N.E.2d 167,40 Mass.App.Ct. 585
• Parties: COMMONWEALTH v. Leonard H. ADELSON.
• Court: Appeals Court of Massachusetts

Page 167

666 N.E.2d 167

40 Mass.App.Ct. 585

COMMONWEALTH v. Leonard H. ADELSON.

No. 95-P-1226.

Appeals Court of Massachusetts Middlesex.

Argued Jan. 12, 1996.

Decided June 13, 1996.

Further Appellate Review Denied Sept. 11, 1996.

Francis J. DiMento, Boston, for the defendant.

Scott Glauberman, Boston, (Geraldine C. Griffin, Assistant District Attorney, with him), for the Commonwealth.

Before DREBEN, GREENBERG and FLANNERY, JJ.

GREENBERG, Justice.

With what some might call audacity but most would term merely more confidence than the scheme inspired, the defendant went to Russia to plumb the possibilities of marketing videotapes of prizefights arranged by the defendant between Russian and American fighters. To promote the enterprise, he obtained the services of two Arizona residents, Steven Eisner and Lawrence Meyers. Refusal of a Massachusetts bank to honor checks payable to them, drawn on the defendant's Cambridge bank account, became the source of a criminal complaint--in five counts--for larceny by check. See G.L. c. 266, § 37. ¹ Before the trial began, the defendant moved to dismiss the complaint because (1) the court lacked territorial jurisdiction and (2) venue was improperly laid in Middlesex County. At the close of the Commonwealth's case, upon the same grounds, the defendant asked the judge to dismiss the complaints in his discretion under Mass.R.Crim.P. 25(b)(1), 378 Mass. 896 (1979). Both motions were denied, and the six-person jury found the defendant guilty of three of the five counts. Whether a Massachusetts court has territorial jurisdiction over the offenses is the principal issue of the appeal.

We decide that the trial judge was warranted in denying the defendant's motion to dismiss the complaint. The venue question we also resolve in favor of the Commonwealth. We sketch the facts, mostly undisputed, as they relate to the jurisdictional issue.

The defendant lived in Weston (Middlesex County) and ran an operation called American International Boxing out of an office located in Wellesley, a town situated within the confines of Norfolk County. He first spoke to Eisner about his idea in early 1993. Eisner had an office in Arizona, and their continued collaboration resulted in a contract. The defendant was to underwrite the project and solicit Russian prize fighters while Eisner was to choose appropriate locations for the bouts and assume promotional responsibilities. That chore included procuring a salaried "matchmaker" who would find suitable American opponents for the Russians. As stated, their joint venture was supposed to produce videotapes to be sold, presumably at a profit, to Russian television producers.

On March 23, 1993, plans to film the first set of matches in Nevada went awry when the defendant failed to pay the production company that Eisner hired. Early the following month, Eisner put the defendant in touch with Southwest Television Production Services, Inc., a company run by Lawrence Meyers of Phoenix, Arizona. Work ensued on the production end, but bills for Southwest's services, as well as other providers, were not paid.

A series of frantic telephone requests for money were made to the defendant, just prior to a second set of fights scheduled at Laughlin, Nevada, for April 23, 1993. It is not necessary to recount, in detail, the nature of the calls except to state that Eisner and Meyers had distinct reservations about what would happen if the defendant's end of the deal soured. The calls eventuated in the defendant sending two separate checks to Eisner both dated April 19, 1993, drawn on the defendant's account at the Cambridge Trust Company: one for $7,500, and another for $2,500. Two days later, the defendant wrote another check from the same account to Meyers in the amount of $5,000 as part payment for videotaping the matches. These checks, eventually dishonored, form the basis of the defendant's convictions.

Meanwhile, on the basis of receipt of the checks, Eisner and Meyers went ahead with the project. Two tapes were made, one of the bouts themselves and another of "human interest" segments, including minibiographies and interviews with the boxers and footage of the Las Vegas area, to enhance the Russian viewers' interest in the bouts. The first tape was sent to the defendant in Massachusetts, but the second was held back, perhaps as security for the unpaid balance owed to Eisner and Meyers for services not covered by the three checks.

One thing about the "Sweet Science" upon which all boxing aficionados agree is that fights used to be better; that may account for the sudden death of the venture. ² The defendant never made any Russian deals or paid vendors balances due for services. In July, 1993, Eisner and Meyers sent written demands that the defendant make good on his dishonored checks. ³ No reimbursement was forthcoming.

1. Jurisdictional issues. After the Legislature made it a crime to obtain services through the use, with intent to defraud, of a check drawn against insufficient funds (G.L. c. 266, § 37; see note 1, supra ), ⁴ decisional law established a generally accepted rule: the crime of larceny, which includes the element of asportation, may be punished in Massachusetts if the thief brings the stolen goods into this State after acquiring them outside of the jurisdiction. Commonwealth v. White, 358 Mass. 488, 265 N.E.2d 473 (1970). Commonwealth v. Carroll, 360 Mass. 580, 585, 276 N.E.2d 705 (1971). The interplay of evidential factors shaping the decision in this case draw upon the same principle. The testimony of the complainants and the defendant, himself, establishes that all of the out-of-State services given in exchange for the bogus checks (e.g., arranging prize fights, the associated promotional efforts, sale of tickets to the local audience, videotaping and editing the final film) generated a single product: a videotape sent to the defendant in Massachusetts.

There is another factor that provides Massachusetts a jurisdictional basis in this case. The gist of the offense of larceny by check is an implied representation that the maker has "sufficient funds or credit at [his] bank for the payment of the checks drawn by him 'upon' that bank." Commonwealth v. Ohanian, 373 Mass. 839, 843, 370 N.E.2d 695 (1977). Knowledge of the insufficiency of funds or credit at the drawee bank is an essential element of the crime of larceny by check. Id. at 841-842, 370 N.E.2d 695; G.L. c. 266, § 37. While it is true, as the defendant argues, that the bank's act of dishonoring the checks is not the act that confers jurisdiction, see Commonwealth v. Klein, 400 Mass. 309, 313, 509 N.E.2d 265 (1987), the combination of knowingly writing a "bad check" with intent to secure possession of the tapes in Massachusetts provides ample basis to conclude that a crime was...