Com. v. Gill

• Decision Date: 24 May 1977
• Citation: 363 N.E.2d 267,5 Mass.App.Ct. 337
• Parties: COMMONWEALTH v. Edward F. GILL (and a companion case 1 ).
• Court: Appeals Court of Massachusetts

Page 267

363 N.E.2d 267

5 Mass.App.Ct. 337

COMMONWEALTH v. Edward F. GILL (and a companion case ¹).

Appeals Court of Massachusetts, Middlesex.

Argued Feb. 14, 1977.

Decided May 24, 1977.

James F. Sullivan, Boston (John J. Fitzpatrick, Medford, with him), for defendants.

Peter W. Agnes, Jr., Asst. Dist. Atty., for the Com.

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

HALE, Chief Justice.

Edward F. Gill, then mayor of the city of Woburn, Charles J. DiPanfilo, the city solicitor, and one Wall were charged in indictments ² returned in August, 1972, with conspiracy to violate G.L. c. 30, § 39M, in connection with the awarding of certain sewer contracts. After a jury waived joint trial Wall was acquitted, but defendants Gill and DiPanfilo were both found guilty on all three counts of indictments 102287 and 102290, respectively. The defendants' amended bills of exceptions, filed pursuant to G.L. c. 278, § 31, claim as error the denial of their motions to dismiss the indictments and the denial of their motions for findings of not guilty.

1. We first consider the defendants' motions to dismiss the indictments. ³ Basically the defendants argue that the trial judge erred in denying those motions for the following two reasons: (1) the indictments failed to set forth a crime because they did not allege that the objective or means of the conspiracy would cause such significant harm to an individual or to the general public as to be seriously contrary to the public interest and (2) the indictments failed to set forth a crime because they did not allege a substantial or clearly unlawful means or object of the conspiracy.

The test of the sufficiency of the indictments is whether they 'fully and plainly, substantially and formally' describe the crimes or offenses for which the defendants are held to answer. Article 12 of the Declaration of Rights of the Massachusetts Constitution. See Commonwealth v. Welansky, 316 Mass. 383, 395--396, 55 N.E.2d 902 (1944). By statute the indictment shall contain '(a) plain and concise description of the act which constitutes the crime . . .' G.L. c. 277, § 17. An indictment may use the words of a statute to define a crime. G.L. c. 277, § 17. Commonwealth v. Bracy, 313 Mass. 121, 123, 46 N.E.2d 580 (1943). See Commonwealth v. Hare, 361 Mass. 263, 266, 280 N.E.2d 138 (1972).

In the present case the Commonwealth has tracked the language of G.L. c. 30, § 39M, to allege the unlawful objective of the conspiracy. In pertinent part the indictments state that the defendants 'did conspire . . . to cause a contract . . . to be awarded by the City of Woburn, to a person who was not the lowest responsible and eligible bidder on the basis of competitive bids publicly opened and read in the manner provided by . . . (G.L. c. 30, § 39M), well knowing that the cost of the contract would exceed two thousand dollars.'

The applicable language of G.L. c. 30, § 39M, as amended through St.1967, c. 535, § 5, provides that '(e)very contract . . . shall be awarded to the lowest responsible and eligible bidder on the basis of competitive bids publicly opened and read by such awarding authority forthwith upon expiration of the time for the filing thereof; provided, however, that such awarding authority may reject any and all bids, if it is in the public interest so to do.'

Except where all bids are rejected this statute requires the awarding of the contract to the lowest responsible and eligible bidder determined after competitive bids have been filed pursuant to a publicized invitation. The same is true of contracts governed by G.L. c. 149, §§ 44A--44L. Although it might appear that the word 'any' in G.L. c. 30, § 39M (as well as in G.L. c. 149, § 44D) would allow rejection of the low bid so as to result in the awarding of the contract to a person not the lowest responsible and eligible bidder, a long line of cases has determined that contracts subject to those provisions cannot properly be awarded to one other than the lowest responsible and eligible bidder. Gifford v. Commissioner of Pub. Health, 328 Mass. 608, 616, 105 N.E.2d 476 (1952). East Side Constr. Co. Inc. v. Adams, 329 Mass. 347, 354, 108 N.E.2d 659 (1952). Rudolph v. City Manager of Cambridge, 341 Mass. 31, 33, 167 N.E.2d 151 (1960). Gosselin's Dairy Inc. v. School Comm. of Holyoke, 348 Mass. 793, 205 N.E.2d 221 (1965). Interstate Engr. Corp. v. Fitchburg, --- Mass. ---, ---, and ---, 329 N.E.2d 128 ^a (1975) (Wilkins, J., dissenting). Sears, Roebuck & Co. v. School Comm. of Burlington, --- Mass.App. ---, --- ^b, 331 N.E.2d 551 (1975). ⁴

The crime of conspiracy is not restricted to arrangements which have a criminal objective or contemplate the use of criminal means to accomplish a lawful objective. Commonwealth v. Bessette (No. 1), 351 Mass. 148, 153--154, 217 N.E.2d 893 (1966). In Commonwealth v. Dyer, 243 Mass. 472, 485, 138 N.E. 296, 303 (1922), cert. den. 262 U.S. 751, 43 S.Ct. 700, 67 L.Ed. 1214 (1923), it was said, 'It is the consensus of opinion that conspiracy as a criminal offence is established when the object of the combination is either a crime, or if not a crime, is unlawful, or when the means contemplated are either criminal, or if not criminal, are illegal, provided that, where no crime is contemplated either as the end or the means, the illegal but noncriminal element involves prejudice to the general welfare or oppression of the individual of sufficient gravity to be injurious to the public interest.' In Commonwealth v. Bessette (No. 1), 351 Mass. 148, 217 N.E.2d 893 (1966), and in Commonwealth v. Bessette (No. 2), 351 Mass. 157, 217 N.E.2d 899 (1966), the court was faced with determining the sufficiency of an indictment which charged neither a criminal object nor a criminal means in the perpetration of the conspiracy. In Bessette (No. 1), 35u Mass. at 154, 217 N.E.2d at 897, the court confirmed the continued vitality of the Dyer rule in that area and in so doing stated the limits of the narrow range of situations to which that rule might be applied: '(a) where there is strong probability (as in the monopolistic plans involved in the Dyer case) that the execution of the plan by group action will cause such significant harm to an individual or to the general public, as to be seriously contrary to the public interest, and (b) where the unlawfulness of objective or contemplated means is substantial and clear.' The court went on to say, 'There is sound reason for such limitation. As Perkins, Criminal Law, 544 (1957) points out, a more inclusive definition of 'unlawful' might 'be held void for vagueness under the Due Process Clause (of the Federal and Massachusetts Constitutions) unless what is . . . proscribed is spelled out with sufficient clearness to guide those who would be law-abiding and to advise defendants of the offense with which they are charged.''

We must determine whether the indictments in the present case spelled out offenses under the Dyer rule as limited by Bessette (No. 1), at 154, 217 N.E.2d at 897, by showing that acts alleged to have been committed by the defendants would 'cause such significant harm . . . to the general public, as to be seriously contrary to the public interest.' We do not regard the Bessette decisions as requiring that an indictment charging such a conspiracy contain a specific averment to the effect that the conduct alleged would cause that harm, as such an averment would merely be conclusory and would add nothing. See Commonwealth v. Freelove, 150 Mass. 66, 22 N.E. 435 (1889); Commonwealth v. Kimball, 299 Mass. 353, 354, 13 N.E.2d 18 (1938); Frisbie v. United States, 157 U.S. 160, 168, 15 S.Ct. 586, 39 L.Ed. 657 (1895); United States v. Brogren, 63 F.Supp. 702, 704 (D.Mass.1945). Compare G.L. c. 277, §§ 33, 34. For a discussion of the revision and simplification of indictments see Note, Streamlining The Indictment, 53 Harv.L.Rev. 122 (1939). It is enough that the charges in the indictments are such as clearly lead to that conclusion.

In Bessette (No. 1), supra, 351 Mass. at 156, 217 N.E.2d at 898, the court concluded that the allegations of the indictment did not tend to show that a violation of a certain article of the 'Standard Specifications' of the division of waterways of the Department of Public Works, which had been incorporated into a contract, 'was likely to be of serious or substantial consequence or to cause loss to the Commonwealth, to the public or any stated portion of it, or to any individual.' In fact, the court went on to say that '(s)o far as it appears from the indictments, the violation was merely a breach of contract . . ..' Ibid. Likewise, in Bessette (No. 2), supra, in which the conspiracy charged was the failure to give the Commonwealth statutorily required advance notice of an award for extra work under a contract with the Commonwealth, the court, at 162, 217 N.E.2d at 903, stated that '(n)o allegations showing any such serious probable effect (injury to the public interest) of the alleged conspiracy are made in this indictment. There are no averments tending to show that what was stated to be the object of the conspiracy, if carried out, would amount to more than a procedural irregularity, or that . . . the consequences would be likely to be seriously detrimental to the public interest in any stated respect.' The court noted that it was not charged that the Commonwealth would have been harmed had the statutory notice been given late or not at all.

In contradistinction to the purposes of the statutes considered in the Bessette cases, the design of the competitive bidding statutes, of which § 39M is one, is 'to establish genuine and open competition after due public advertisement in the letting of contracts . . . to prevent favoritism in awarding such contracts and to secure honest methods of letting contracts in the public interests. The main aim was to protect the public.' Morse v. Boston, 253 Mass. 247, 252, 148 N.E. 813, 815 (1925). The...