Com. v. Imbruglia

• Decision Date: 02 April 1979
• Parties: COMMONWEALTH v. Frank E. IMBRUGLIA (and two companion cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 559

387 N.E.2d 559

377 Mass. 682

COMMONWEALTH v. Frank E. IMBRUGLIA (and two companion cases).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 5, 1978.

Decided April 2, 1979.

Dyanne Klein Polatin, Boston, for defendant.

Barbra T. Shurpin, Sp. Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and BRAUCHER, KAPLAN, LIACOS and ABRAMS, JJ.

LIACOS, Justice.

The defendant was convicted on two indictments of receiving stolen securities and one indictment of possession of counterfeit currency with intent to pass the same as true. On appeal, transferred here on our own motion (G.L. c. 211A, § 10(A)), he argues two assignments of error: (a) that a two-year pre-indictment delay denied him his right to due process, and (b) that the admission of evidence of other crimes was prejudicial. Finding no error, we affirm.

The three indictments stem from an undercover investigation of the defendant's activities by the United States Secret Service. In late August, 1973, Secret Service Agent Francis Searle received a tip from an informant, Guy Sylvestro, that the defendant was allegedly fencing stolen securities. Sylvestro apparently was a long-time acquaintance of the defendant. As a result of the tip, a meeting was arranged at which Sylvestro would introduce a Frank Cetti to the defendant. In reality, Cetti was Searle.

During the next six weeks, Searle obtained from the defendant and others stolen securities worth a substantial sum and fake United States currency. The first transactions were for relatively small sums and appear to have been preliminary to a later, larger transaction. From the record, it is apparent that the Secret Service planned to have Searle gain the defendant's confidence and then impress on the defendant and others that he could "move" or convert into cash large quantities of stolen securities. The key element of the plan was Searle's acquaintance with an allegedly corrupt loan officer at The First National Bank of Boston. In meetings and conversations with the defendant and the defendant's partner, Robert Donati, Searle explained that the loan officer could approve loans of $100,000 without obtaining authorization from any other bank official. Searle further explained that this loan officer was in some sort of financial trouble and, for a share of the booty, would be willing to process loans accepting the stolen securities as collateral. Like Searle, the would-be loan officer was a Secret Agent. The defendant went for the bait and began to acquire securities worth a considerable sum.

It appears in the record, but not in the evidence submitted to the jury, that as a result of the bank scheme, Federal agents arrested the defendant on October 17, 1973, with Donati and four others for receiving, concealing, bartering, and disposing of stolen securities of the value of $5,000 or more which were part of interstate commerce (18 U.S.C. § 2315 (1970)). A charge of conspiracy was later added (18 U.S.C. § 371 (1970)). The securities which apparently were the subject of these charges were five $100,000 treasury notes and one $15,000 treasury note passed to Searle on the day of arrest. In December, 1975, the defendant was convicted in Federal District Court of both offenses and sentenced to concurrent terms of five and seven years. Part of the same series of events resulted in indictments by the Commonwealth. A Suffolk County grand jury indicted the defendant on October 29, 1975, for receiving 144 Series E United States Savings Bonds of a value in excess of $100 stolen from John and Evelyn Concannon, for possession of nine counterfeit ten-dollar bills, and for receiving twenty-six ¹ Series E Savings Bonds of a value in excess of $100 stolen from Gertrude Haggerty. The indictments alleged that these offenses occurred respectively on September 4, 1973, on or about October 1, 1973, and on October 16, 1973. ²

At the trial of these indictments, the prosecution introduced a stipulation of the parties that the Concannon and Haggerty bonds had been stolen. In dispute then was the defendant's possession of the bonds and counterfeit bills and his knowledge and intent with respect to their status. The Commonwealth's case rested largely on the testimony of Secret Service Agent Searle, who purportedly received the stolen bonds and counterfeit money from the defendant. The other government witnesses were also Secret Service Agents, and their testimony corroborated various aspects of Searle's testimony.

The defendant asserted prior to trial that he would claim entrapment as a defense. He did not, however, produce any witnesses to substantiate this claim and did not himself take the stand. Indeed, the only witness called by the defendant was Agent Searle and then only for impeachment purposes.

1. Pre-Indictment Delay.

Two years elapsed between the commission of the alleged offenses charged and the State indictments. Claiming that this delay had denied him due process, the defendant filed a pretrial motion to dismiss. ³ In support of this motion, the defendant filed an affidavit which states in essence that before the instant charges issued, the defendant was arrested on Federal charges arising from the same series of transactions. The affidavit further states that the defendant was ultimately convicted of the Federal charges and sentenced to a term of seven years in Federal prison to be served on and after a State sentence he was then serving on unrelated charges at the Massachusetts Correctional Institution at Norfolk. The affidavit also states that as a result of the delay before the State indictments the defendant was prejudiced in his defense and prejudiced in the possibility of obtaining a concurrent sentence with the Federal sentence imposed for essentially the same series of transactions.

At a pretrial hearing the defendant in argument elaborated on the prejudice to his defense allegedly caused by delay. He suggested that the delay would generally weaken his ability to recall events accurately, and had deprived him of Sylvestro's testimony, which he claimed was crucial to his defense of entrapment. He further suggested that the delay served no legitimate law enforcement purpose.

The defendant called two witnesses in support of these claims: Secret Service Agents Francis Searle and James Monahan. Searle explained Sylvestro's participation in the investigation and his relationship to the Secret Service. Sylvestro introduced Searle to the defendant and continued on occasion to supply the agency with pertinent information during the course of the investigation. For his participation, Sylvestro received a sum of money from the agency. Searle testified that his last contact with Sylvestro was by telephone in 1974; according to Searle, Sylvestro had telephoned from Florida. Monahan also testified that he had had no contact with Sylvestro since 1974.

From Agent Monahan, defense counsel elicited testimony that the Federal investigation of the defendant was complete as of the defendant's arrest on October 17, 1973. He and Searle testified, however, that the investigation was not a joint effort between State and Federal law enforcement agencies, nor did a liaison exist between the two sovereignties on the matter. On October 16, Monahan spoke with Detective Walsh of the Boston police department and asked him to help identify an individual who had come within the scope of the agency's investigation of the defendant. On October 17, Detective Walsh and Detective Connolly were present at the arrest of the defendant by request of Agent Monahan. Monahan explained that it was normal practice to inform local police of a planned arrest. Monahan further testified that when he spoke with Detective Walsh he did not suggest that the defendant's activities involved possible violations of State law. Monahan claimed that in fact he first became aware of a possible violation of State law in a conversation with Boston police Detective Robert Patenaude in April, 1975. Monahan testified that he had mentioned the approaching Federal trial of the defendant and had expressed regret that the Federal code did not permit prosecution of the defendant for some of the packages of securities passed to Searle. When Patenaude informed Monahan that some of the securities obtained could serve as the basis for a State prosecution, Monahan supplied the Suffolk district attorney with the relevant evidence. The Suffolk indictments were then issued in October, 1975.

The prosecution introduced no evidence of its own at the pretrial hearing. It argued, however, that the evidence already adduced established that the Commonwealth had not sought the indictments sooner because State law enforcement officials were unaware until April, 1975, that the Federal investigation had uncovered possible violations of the State criminal law. The prosecution maintains that delay in such circumstances does not warrant dismissal. It also denied that the defendant had suffered actual prejudice due to the delay. Without making any findings, the trial judge denied the defendant's motion to dismiss.

This court has followed the Supreme Court of the United States ⁴ in analyzing the due process consequences of a pre-indictment delay. See Commonwealth v. Canon, --- Mass. ---, --- ^A, 368 N.E.2d 1181, cert. denied, 435 U.S. 933, 98 S.Ct. 1510, 55 L.Ed.2d 531 (1978); Commonwealth v. Horan, 360 Mass. 739, 740-742, 277 N.E.2d 491 (1972). The Supreme Court has acknowledged that the applicable statute of limitations, which is the primary safeguard against being compelled to answer overly stale criminal charges, see Commonwealth v. Jones, 360 Mass. 498, 501-502, 275 N.E.2d 143 (1971), "does not fully define (a defendant's) rights with respect to the events occurring prior to indictment." United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971). Even when the indictment issues within the statutory period, pre-indictment delay...