Com. v. Benjamin

Decision Date19 December 1975
Citation339 N.E.2d 211,3 Mass.App.Ct. 605
PartiesCOMMONWEALTH v. Carl M. BENJAMIN (and two companion cases 1 ).
CourtAppeals Court of Massachusetts

John F. Palmer, Boston (Thomas J. Herbert, Boston, with him), for defendant Robert C. Lawrence.

William P. Homans, Jr., Boston, for defendant Edward M. Roberts.

Walter J. Hurley, Boston, for defendant Carl Benjamin, submitted a brief.

Terence M. Troyer, Asst. Dist. Atty., Dante DeMichaelis, Asst. Dist. Atty., and Harry C. Mezer, Legal Asst. to the Dist. Atty., Brookline, with him, for the Commonwealth.

Before HALE, C.J., and GRANT and ARMSTRONG, JJ.

GRANT, Justice.

Benjamin, Roberts and Lawrence have each been convicted by a jury of numerous charges of conspiracy. In order to place in proper perspective the various exceptions which have been argued by each defendant, it will be necessary to outline at some length the salient features of these cases as they pursued a common course from indictment to sentence. 2

On October 21, 1968, a grand jury sitting in Middlesex county returned a welter of indictments against Benjamin, Roberts, Lawrence, one Paul J. Brousseau, and one Claire Monroe, alleging the commission by each of a variety of white collar crimes. Included in the welter were separate conspiracy indictments against each of the five named above. Each of those indictments originally contained 128 separate counts. Each count of each indictment alleged that on a stated date the particular defendant named therein had conspired with the other four named above '(1) to forge a certain instrument purporting to be a promissory note with intent to injure and defraud, (2) to utter and publish as true a certain forged instrument well knowing the same to be forged, with intent to injure and defraud, and (3) to steal money of the property of First Finance Corp.' The date stated in any particular numbered count of any one indictment was repeated in the same numbered count of each of the other four indictments. Shortly after the return of the indictments the prosecution eliminated six counts of each indictment by nolle prosequi; the counts so eliminated bore the same numbers (and alleged the dame dates of offence) in each indictment.

The remaining 122 counts effectively charged each defendant with having conspired with the other four defendants to forge, utter and steal from First Finance Corp. (FFC) on a total of sixty-two different dates ranging in time from October 1, 1964, to January 16, 1967. As many as eight separate conspiracies were alleged to have been entered into on a single date. In response to motions of the defendants and orders of the court, the prosecution filed a bill of particulars with respect to each count of each indictment. Each bill purported, among other things, to identify a particular individual whose name was said to have been employed by the defendants in creating a fictitious loan from FFC. The name disclosed in the bill filed with respect to any particular numbered count of any one indictment was repeated in the bill filed with respect to the same numbered count of each of the other four indictments; there were 122 such names in all. Except in the respects just indicated, the bills filed with respect to each count of each indictment were identical. 3

Shortly after receipt of the bills of particulars Benjamin, Roberts, Lawrence and Monroe (but no Brousseau) filed motions to dismiss the indictments against them, principally on the ground (as asserted in the motions) that 'the Commonwealth has taken a single conspiracy and has fragmented it into 122 counts on the principle that each overt act committed pursuant to the conspiracy constitutes a separate and distinct conspiracy.' A judge of the Superior Court made certain findings which tended to support the quoted contention, allowed the motions, dismissed the indictments, and reported the propriety of his actions to the Supreme Judicial Court.

The report contained no factual support for the defendants' contention, and in Commonwealth v. Benjamin, 358 Mass. 672, 266 N.E.2d 662 (1971), 4 it was held that the indictments were sufficient and should not hae been dismissed.

Turning to questions which had not been reported, the court had the following to say: 'The bills of particulars do strongly indicate that the form of the indictments is clumsy and repetitious. In effect, 122 counts have been employed to set forth what could reasonably be viewed as a single conspiracy (or perhaps only a few conspiracies). The form of the indictments, however, may not obscure the circumstance that each count sufficiently sets forth a serious criminal charge which, read with the related bill of particulars, adequately advises each defendant of the charge against him. Each count refers to a particular criminal act, which at trial may be proved to be either (a) an unlawful act in furtherance of a continuing conspiracy, or (b) in itself, the unlawful object of a conspiracy to commit that act. The statement of the substantive charges against the defendants has not been shown to be inadequate in any way. The defendants' arguments on the alleged fragmentation of the charges seem to be addressed merely to inconsequential niceties of form. The conspiracy indictments could have should have been expressed more concisely and in a manner more consistent with the clear, informative statements in the narrative bill of particulars' (358 Mass. at 675, 266 N.E.2d at 664); and, 'Our holding that the dismissal of the indictments was not proper should not be regarded as approval of the practice of obtaining multiple, repetitious, and overlapping indictments (or counts in indictments) where fewer indictments or counts not only would suffice, but probably would much more clearly present the charges. Multiple indictments, such as those in the present cases, impose an unnecessary burden on courts, juries and parties. They cause unnecessary expense and confusion, and may lead to unduly long trials. We regard the practice as objectionable. Where new indictments, more simply framed, may still be obtained within the period of the applicable statute of limitations, we think a trial judge may and should require a district attorney to attempt to obtain them' (358 Mass. at 677--678, 266 N.E.2d at 666). The court also suggested the possibility that further bills of particulars might be in order (358 Mass. at 676 (n.6) and 677 (n.7), 266 N.E.2d 662).

Approximately three months after the date of the rescript in Benjamin (No. 1), Benjamin, Roberts, and Lawrence filed separate motions to dismiss the indictments against them because the prosecutor had made no attempt during the intervening period to secure new and more simply framed indictments. Roberts and Lawrence also filed motions to strike the bills of particulars which related to them and for further particulars. 5 A judge of the Superior Court 6 denied each of those motions 'as a matter of discretion.' Roberts sought interlocutory relief with respect to the denial of his motion to dismiss from a single justice of the Supreme Judicial Court. The single justice denied the relief requested, apparently with some form of suggestion that Roberts explore the possibilities of severance in the Superior Court.

Benjamin, Roberts, Lawrence and Monroe (but not Brousseau) thereupon filed (or resurrected them pending) motions to sever defendants and counts for trial. When considered in the light of the previous history of these cases, the hearing on those motions was perfunctory at best. The judge appears to have assumed the existence of a prior order that all the conspiracy indictments be tried together. 7 He gave no appearance of having consulted the grand jury minutes. See Benjamin (No. 1), 358 Mass. at 677, 266 N.E.2d 622. The prosecutor did not volunteer, nor did the judge require, any explanation of the evidence to be offered in support of any count (or group of counts) in any indictment. Contrast Commonwealth v. Beneficial Fin. Co., 360 Mass. 188, 225--226, 275 N.E.2d 33 (1971), cert. den. sub nom., Farrell v. Massachusetts, 407 U.S. 910, 92 S.Ct. 2433, 2435, 2448, 32 L.Ed.2d 683 (1972), and sub nom. Beneficial Fin. Co. v. Massachusetts, 407 U.S. 914, 92 S.Ct. 2433, 2434, 32 L.Ed.2d 689 (1972). 8 So far as the hearing was concerned, the judge did not even inquire of the prosecutor whether he could suggest some means of simplifying the trial.

The judge denied a severance of defendants (indictments). He did, however, grant partial relief. '(I)n order to promote a fair determination of each defendant's guilt or innocence of the various offenses charged,' the judge ordered that sixty-two of the 122 counts of each indictment be served and that the trial proceed on the remaining sixty counts of each indictment; the pertinent order contained a proviso that nothing therein contained should 'preclude a defendant from moving during trial for a further severance of counts if such severance should then be deemed necessary.' The order left to the prosecutor the determination of the sixty-two counts to be severed. 9 The order set out no standard by which he was to make his determination of the counts to be tried; the election filed by him contained no hint of the means by which he had made his selections.

On the first day of the trial, and out of the hearing of the jury venire, Brousseau pleaded guilty to all sixty counts of the indictment then scheduled for trial. He became the prosecution's chief witness during the trial.

It appeared at trial that FFC was a finance company which had originated in Lowell but had later moved its executive offices to Chelmsford. It has branch offices in Chelmsford, Lowell, and elsewhere in Massachusetts and in three of the other New England States. 10 Lawrence, whose principal office was on the fringe of the Boston financial district, was, at all material times, the executive vice president of FFC; his duties...

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19 cases
  • Com. v. Winter
    • United States
    • Appeals Court of Massachusetts
    • 29 Mayo 1980
    ...in the particular way with respect . . . to the DAV conspiracy and the Somerset Vending conspiracy." See Commonwealth v. Benjamin, 3 Mass.App. 604, 619, 339 N.E.2d 211 (1975), in which we approved the submission to the jury of multiple and overlapping charges of conspiracy where no overall ......
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