Com. v. Burke

• Decision Date: 06 August 1985
• Citation: 481 N.E.2d 494,20 Mass.App.Ct. 489
• Parties: COMMONWEALTH v. Daniel J. BURKE (and a companion case 1 ). Appeals Court of Massachusetts, Essex
• Court: Appeals Court of Massachusetts

Page 494

481 N.E.2d 494

20 Mass.App.Ct. 489

COMMONWEALTH v. Daniel J. BURKE (and a companion case ¹).

Appeals Court of Massachusetts,

Essex.

Argued Feb. 13, 1985.

Decided Aug. 6, 1985.

Daniel E. Callahan, Boston, Committee for Public Counsel Services, for Paul C. Gaudet.

Earle C. Cooley, Boston (Thomas G. Guiney, Boston, with him), for Daniel J. Burke.

Dyanne Klein Polatin, Asst. Dist. Atty. (Robert N. Weiner, Asst. Dist. Atty., with her), for the Com.

Before SMITH, CUTTER and FINE, JJ.

SMITH, Justice.

On January 27, 1981, an Essex County grand jury returned indictments containing three counts against each of the defendants, Daniel J. Burke and Paul C. Gaudet. Count one in each indictment alleged that between July 1, 1973, and January 28, 1975, each defendant, along with the other defendant and with Daniel J. Shields, William F. Harding, Jerry J. Campana, and Adek Apfelbaum, ² had conspired to violate G.L. c. 268A, § 2(b ), as amended by St.1964, c. 287. ³ Count two alleged the same conspiracy but without corrupt intent. See G.L. c. 268A, § 3(b ). Count three alleged a conspiracy to violate G.L. c. 268A, § 4. ⁴ Burke was convicted of conspiracy to violate G.L. c. 268A, § 2(b ) (corrupt intent), and Gaudet was found guilty of conspiracy to violate G.L. c. 268A, § 3(b ) (without corrupt intent). ⁵ On these appeals It was the Commonwealth's theory at trial that Burke, while an Essex County commissioner, and Gaudet, an assistant county dog officer, entered into a conspiracy with the other persons named in the indictments. The purpose of the conspiracy was for Burke and Gaudet to solicit and receive money in the guise of campaign contributions in return for Burke's being influenced in an official act, i.e., the award to Project Construction Management, Inc. (PCM), of construction management contracts for certain projects contemplated by Essex County. Gaudet's role in the conspiracy was to act as an agent of Burke. We summarize the facts, leaving some details to be described when we discuss the various issues raised by either or both of the defendants. In reading the summary of facts it is important to keep in mind that February 5, 1974, was the date that the county commissioners first voted to award the construction management contracts to PCM and that prior to that meeting, neither of the other two commissioners had ever heard of the company.

the defendants allege several errors which they claim require reversal of their convictions. We consider the defendants' principal allegations of error in the opinion and briefly discuss, in the appendix, several other claims of error.

The chief prosecution witness was Daniel Shields. He first met Burke and Gaudet either in 1969 or 1970. Gaudet was a close associate and political supporter of Burke. His wife, Barbara, was the treasurer of the Burke campaign committee. At the time that Shields met them, Burke was a county commissioner in Essex County, and Gaudet was employed as the assistant dog officer for that county. ⁶ Shields was introduced to the defendants by Harding. Shields, at the time, was the president of Mauchly Construction Management (Mauchly), a firm that specialized in providing management services to clients in regard to construction projects. Harding also worked for Mauchly at the time, in sales, and his territory included Essex County.

In 1971 Mauchly merged with McKee-Berger-Mansueto, Inc. (MBM), a firm also engaged in the construction management field. Both Shields and Harding were employed by MBM in sales. Later, Shields became president of MBM. While working for MBM, Shields became friendly with two other persons named in the indictments, Campana and Apfelbaum, both of whom were employed for a time by MBM. While employed by MBM, Shields and Harding kept up their acquaintanceship with Burke and Gaudet.

In July, 1973, Shields left MBM. Apfelbaum had also left the company and had formed a construction management firm, called Slaydek, with one Slayton. Some time between August and October of 1973, Apfelbaum asked Shields to join Slaydek. Shields decided instead to start PCM with Campana. The company would be affiliated with Slaydek. PCM would be involved Shortly after their meeting with Burke and Gaudet, Shields, Harding, and Campana met at Campana's home. Harding told them that the construction management contracts for the Essex County projects were going to come through and that Burke had requested contributions for his campaign for county commissioner. ¹¹ Because no one present was financially able to make any such contribution, they decided to ask Slaydek for advances on their anticipated commissions. It was further agreed that any contribution to Burke would be made through Harding. Subsequently, Shields, Harding, and Campana met with Apfelbaum at Slaydek. They requested advances on their commissions from that company. Within a few days, the same individuals again met and were informed by Apfelbaum that Slaydek was willing to make them advances. The manner in which the campaign contributions On November 19, 1973, Slaydek advanced the sum of $22,500 to PCM. Shields received a check for $10,000 on that date. Campana received a check for $12,500 on December 20, 1973. On the same day that he received the check, Shields deposited the money in his own account and wrote a check for $4,000 to Harding so that Harding could make the contribution to Burke's campaign fund. ¹² On November 20, 1973, Harding deposited the Shields check in his own account. On the same day, he made out a check to Gaudet in the amount of $1,000, which was endorsed and cashed by Gaudet. On November 26, 1973, Harding wrote out a check to the "Daniel J. Burke Committee" in the amount of $2,000. Barbara Gaudet, the defendant's wife and the treasurer of the Burke campaign committee, deposited the check in the committee's account on November 27, 1973. On February 9, 1974, Shields wrote a check to Harding in the amount of $2,000. Harding, in turn, wrote a check in that amount on February 15, 1974, to Gaudet, who endorsed and cashed it.

                in sales, and Slaydek would handle the technical side of construction management.  While PCM was in the process of being formed, Harding informed Shields that he had heard from Burke that Essex County planned to have some construction work done. 7  Harding told Shields that Burke had informed him that he (Burke) had "reservations" about utilizing the services of MBM for construction management of the projects and that he (Burke) wanted Harding to handle the scheduling of the construction projects because of his confidence in Harding's ability. 8  In early November, 1973, Shields, Harding, Campana, [20 Mass.App.Ct. 494] and Apfelbaum met in Slaydek's office and discussed, among other things, the pending construction projects in Essex County.  Harding told the group that it was Burke's desire that Harding handle the scheduling and that he (Harding) would receive a commission if PCM obtained the construction management contracts. 9  Shortly after that meeting, Shields, Harding and Campana met with Burke and Gaudet at a restaurant in Essex County.  Shields explained to them the services that PCM and Slaydek had to offer in the management of construction projects.  Burke stated that he wanted Harding to do the scheduling of the projects.  Shields told Burke that because of his noncompetition agreement with MBM, he would have to remain in the background once the contracts had been awarded and that Harding would be the "up-front" person. 10
                were to be made was not discussed at that time.  In a subsequent conversation that Shields had with Harding, it was agreed that Shields and Campana would give the money to Harding, who, in turn, would then issue checks to the Burke campaign fund
                

When Campana received the $12,500 check from Slaydek he made out a check for $5,000 to Harding, who deposited the check in his own account. On December 24, 1973, Harding wrote out two checks to "Cash". One check for $3,000 was deposited in the Burke campaign account on December 28, 1973; the other check for $1,000 was endorsed by Gaudet and apparently cashed by him on January 5, 1974. ¹³

At the time that Slaydek agreed to advance the money to PCM, Shields and Campana agreed that the money would be repaid to Slaydek out of proceeds from the Essex County construction management contract. In addition, they both signed promissory notes personally guaranteeing payment of the $22,500 to Slaydek. Despite the letter and the notes, Slayton, one of the principals in Slaydek, became apprehensive at the delay in the awarding of the contract to PCM. He communicated his feelings to Shields who, through Harding, obtained a letter from Burke. The letter was dated January 29, 1974, addressed to Shields as vice-president of PCM, and was on the official stationery of the Essex County commissioners. It was signed "Dan". The purpose of the letter was to "reaffirm the selection of your company, [PCM], as the construction managers of the various Essex County projects". The letter also stated that PCM would be appointed by "executive order" at an open meeting on or before March 1, 1974. ¹⁴

Shields was scheduled for an appearance before the Essex County commissioners on February 5, 1974. Prior to that date, sums of money had been given by PCM through Harding, to Gaudet and the Burke campaign committee. Shields had been told by both Harding and Burke that Burke controlled the situation in Essex County. In addition, Shields had received a personal guarantee from Harding and an indication from Burke that PCM would be awarded the construction management contracts.

Burke and the other commissioners (Edward Cahill and Katherine Donovan) were present at the February 5, 1974, meeting. It became immediately apparent to Shields that neither Cahill nor Donovan had ever heard of PCM or its principals. Once Shields heard the detailed questioning by Cahill, he realized that PCM did not have...