Com. v. Borans

• Citation: 393 N.E.2d 911,379 Mass. 117
• Parties: COMMONWEALTH v. David P. BORANS.
• Decision Date: 04 September 1979
• Court: United States State Supreme Judicial Court of Massachusetts

Page 911

393 N.E.2d 911

379 Mass. 117

COMMONWEALTH v. David P. BORANS.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 7, 1979.

Decided Sept. 4, 1979.

Edward T. Dangel, III, Boston (Victor J. Garo, Medford and Michael K. Mattchen, Boston, with him), for defendant.

Robert J. Schilling, Sp. Asst. Dist. Atty. (Carol Anne Fagan, Legal Asst. to the Dist. Atty., with him), for Commonwealth.

Before HENNESSEY, C. J., and BRAUCHER, WILKINS and ABRAMS, JJ.

ABRAMS, Justice.

David Borans, formerly the purchasing agent for the city of Revere, appeals ten convictions stemming from allegations of corruption in the construction of a new high school in Revere. ¹ We granted Borans' motion for direct appellate review. We affirm the convictions.

Borans argues numerous assignments of error on appeal. Specifically, Borans claims that the judge erred in (1) refusing to direct a verdict of acquittal of the charges against him; (2) admitting as evidence conversations held in the absence of the defendant; (3) denying the defendant's motion to sever; (4) refusing to permit the defendant to cross-examine witnesses concerning their knowledge of the maximum penalties for certain crimes; and (5) refusing to require the assistant district attorney to furnish defendant with notes of interviews with Commonwealth witnesses.

The Commonwealth's theory is that, from the outset of Mayor William Reinstein's administration, there existed two schemes to compel contractors and vendors to make campaign contributions in exchange for public contracts. The first scheme sought a twenty-five thousand dollar kickback from Simon Sharigian, President of Si Associates, the contractor who was selected by the mayor to provide the specifications for the various categories of furnishings and interior equipment for the high school. The second scheme required Sharigian to solicit those contractors (vendors) ² interested in bidding for contracts to provide individual categories or items of furnishings and equipment. Sharigian was to determine whether and how much these individual contractors would be willing to pay as a kickback to city officials in return for being awarded contracts with the city of Revere.

Those involved developed well concealed schemes for bribery and kickbacks under the guise of legitimate transactions. The participants also sought to camouflage the kickbacks in a variety of ways, including false and backdated invoices and correspondence, as well as requests for the purchase of tickets for political fund raising dinners and by giving false testimony before the grand jury. The Commonwealth's evidence discloses a shocking betrayal of the public trust. According to the evidence, Borans misused the power of his office to induce political contributions to the mayor. Borans also actively participated in two schemes to siphon funds from the Revere public treasury for the private gain of public officials.

The following is a capsulized version of the evidence against Borans viewed in the light most favorable to the Commonwealth. ³ In January of 1972, William Reinstein took office as the mayor of Revere. Reinstein immediately appointed Borans, who had managed Reinstein's campaign, to the position of purchasing agent for the city.

The Twenty-Five Thousand Dollar Payment by Sharigian

At the time Reinstein and Borans took office, the new Revere high school was in the early stages of construction. Harold M. Turiello, the architect who had designed the structural aspects of the school, had been authorized by the previous mayor of Revere to begin the internal nonstructural specification work for the furnishings and equipment. ⁴

Turiello began work, and in January and July of 1972, Turiello sent bills to the city for consultation work and for the preparation of preliminary studies. These bills were paid by the city after Turiello's contract was examined by the city solicitor.

In late February, 1972, Turiello met with Reinstein at the construction site. ⁵ Reinstein told Turiello, "I want to speak very frankly with you. I want you to join my team. We could work in harmony together. . . . There are tickets to be bought, functions to be held, activities that we can become involved with . . . . You can see that you can make me very happy." Turiello did not respond to these overtures or to overtures made by Reinstein in the spring.

Finally, in mid-July, Reinstein approached Turiello at the construction site. Reinstein said to Turiello, "Say, there, Harold, I am goddam fed up with you. You're a cheap s. o. b. You're dancing me around." Reinstein also told Turiello that he (Turiello) "should have been a priest." Reinstein then turned and walked away.

On September 12, 1972, Turiello was summoned to Mayor Reinstein's office. When he arrived, Turiello found Borans seated in the office with the mayor. Borans opened the conversation by telling Turiello to remain calm and not to "become emotional." Reinstein then told Turiello that "I have decided to dispense with your services on the furnishings and equipment phase." Reinstein refused to give Turiello a reason for his decision.

During the late spring of 1972, a partner in an office equipment supply business located in Worcester was asked whether his firm would be interested in doing the interior specifications work. Shortly thereafter, the partner met with Borans in Borans' office at the Revere city hall. The two men spent approximately twenty minutes discussing the details of the Revere high school work, and the partner left to prepare the proposal to be made by his firm. The Worcester firm's bid for the interior specifications work, totalling $84,000, was mailed to Borans on October 13, 1972.

Approximately two weeks later, a meeting was arranged with Reinstein and Borans, the Worcester contractor and others. Reinstein first asked about the firm's qualifications and experience. Then Reinstein said, "You understand that if you get this job there would have to be a ten thousand dollar contribution in cash?" The contractor responded that "I don't know how we'd come up with ten thousand dollars." The mayor then "mentioned something about a tax affair." The contractor told Reinstein that he would "have to go back and talk to (his) partner." Borans said nothing during the meeting. The Worcester firm had no more contacts with Revere officials, and was not awarded the contract.

In early November, 1972, Simon Sharigian received two telephone calls from one Frank Bowden. ⁶ At this time, Sharigian was in the process of forming a firm, Si Associates, to do interior design, furnishings and purchasing for commercial interiors. ⁷

Bowden first told Sharigian that there was a contract available for the furnishings and equipment specification work for the new Revere high school. Next, Bowden told Sharigian that Sharigian "had the inside track on the contract that was available and it involved a sizeable amount of money." However, Bowden told Sharigian that some of the work had already been done, and, "You're going to have to get involved with quite a bit of money thrown back on this particular contract." When Sharigian expressed interest in the plan, Bowden said that Sharigian would be receiving a call from a Robert Tobin.

Shortly thereafter, Sharigian received a call from Tobin, a Suffolk County deputy sheriff, who arranged a meeting to be held in the Sheriff's office at the Suffolk County court house. At the meeting, Tobin handed Sharigian a copy of the $84,000 bid proposal submitted by the Worcester firm.

Tobin then asked Sharigian how much money Sharigian would need to do the same job. Tobin said, "You're looking at a document here for eighty-four thousand dollars. This is what we are talking about. How much can we realize back on this end? How much do you think you can do the job for? What do you think you can get back for us on this in terms of money?"

Sharigian asked Tobin how much the Worcester firm had offered. Tobin responded, "he only would throw back ten thousand dollars. He is out of the picture." Sharigian then offered to "throw back forty thousand, maybe half." Tobin agreed, but insisted that all or "a good portion of this forty thousand has to be in cash." Tobin then told Sharigian to prepare a proposal for the job under Sharigian's firm's name and to address the proposal to Borans.

The following day, Friday, November 24, 1972, Sharigian prepared a proposal in the name of Si Associates. He then took the papers to Tobin's office. Tobin looked at the proposal and handed Sharigian two copies of the actual contract for the job. The contract between Si Associates and the city of Revere was finally approved on December 22, 1972.

In the middle of March, 1973, Sharigian again met with Tobin at Tobin's office in the Suffolk County court house. Sharigian explained to Tobin that the work was more difficult than Sharigian had anticipated. He then informed Tobin that his firm would only give Tobin twenty-five thousand dollars instead of the agreed-upon forty thousand dollars. Tobin agreed, and told Sharigian to make out two checks: one in the name of Francis B. Bowden for seventeen thousand dollars, the other to Jack B. Stone for three thousand dollars. Tobin also told Sharigian that he (Tobin) wanted five thousand dollars in cash, but Sharigian responded that the cash payment would have to be delayed.

On March 19, 1973, Sharigian made out the checks. While each check relates that the check was for "Services to Si Associates on Revere High School," neither Bowden ⁸ nor Stone ever did work for Si Associates. The same day, Sharigian personally delivered the checks to Tobin. ⁹

Around this time, Borans telephoned Stone and asked Stone to come to his (Borans') office at Revere City Hall. When Stone arrived at Borans' office, Borans told him that he (Borans) felt that Stone was a "very good friend." Borans then asked Stone to "do him a favor." Borans said that Sharigian owed him (Borans) "a...