Com. v. Kiley

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: Before HENNESSEY; HENNESSEY
• Citation: 367 N.E.2d 837,373 Mass. 454
• Parties: COMMONWEALTH v. Charles J. KILEY, Jr. Supreme Judicial Court of Massachusetts, Suffolk
• Decision Date: 30 September 1977

Page 837

367 N.E.2d 837 373 Mass. 454 COMMONWEALTH
v.
Charles J. KILEY, Jr.
Supreme Judicial Court of Massachusetts, Suffolk. Argued May 6, 1977.
Decided Sept. 30, 1977.

Page 838

[373 Mass. 455] John P. White, Jr., Boston, for defendant.

Wade M. Welch, Sp. Asst. Atty. Gen., Boston (Donald P. Zerendow, Asst. Atty. Gen., with him), for the Commonwealth.

Before [373 Mass. 454] HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and LIACOS, JJ.

[373 Mass. 455] HENNESSEY, Chief Justice.

After a trial before a Superior Court judge without jury, the defendant was found guilty on twelve indictments, and on all of the ninety-three counts contained therein, charging violations of G.L. c. 266, § 53A. All charges concerned twelve loans from the Brighton Five Cents Savings Bank (Brighton Five) to Merlin R. Fisher, Jr. (Fisher), six loans to Cirt Research, Inc. (Cirt), of which Fisher was president, and six loans to Octal Realty Inc. (Octal), of which Fisher was president. All loans were alleged to have occurred from on or about October 10, 1969, to on or about July 16, 1971. During all this time the defendant was president of the Brighton Five.

The violations charged were three indictments for wilful misapplication of bank funds in connection with the loans to Fisher, Cirt, and Octal; three indictments for knowingly receiving and accepting fictitious, valueless, inadequate and irresponsible obligations from Fisher, Cirt, and Octal; three indictments for loaning the funds and credits of the Brighton Five to Fisher, Cirt and Octal when the defendant knew each to have insufficient assets; and three indictments for knowingly making and causing to be made false entries on the bank's books, reports, and [373 Mass. 456] statements in connection with the loans to Fisher, Cirt, and Octal. ¹

The defendant was found guilty on all indictments and counts and received a sentence of five years to the Massachusetts Correctional Institution at Concord on each count of the indictments, the sentences to be served concurrently. His appeal is here under G.L. c. 278, §§ 33A-33G. We conclude that there was no error.

1. Trial of the action consumed more than four weeks, and generated hundreds

Page 839

of transcribed pages of testimony. Most of the testimony concerned the details of the twenty-four loans which were the subject matter of the indictments.

The defendant argues that the evidence did not warrant findings of guilty on the ninety-three counts, and that it was error for the judge to deny the defendant's motions addressed to the insufficiency of the evidence. We disagree. The evidence was sufficient as to all indictments and all counts. As to this issue, we consider only the evidence heard by the judge up to the time the Commonwealth rested its case in chief. See Commonwealth v. Kelley, --- Mass. ---, --- ^a, 346 N.E.2d 368 (1976).

In 1968, the defendant worked in Binghamton, New [373 Mass. 457] York. Fisher, whom the defendant had known since 1956 and with whom he had a social relationship, worked in a position subordinate to the defendant. In the fall of 1968, the defendant's brother Edward became president of the Brighton Five, his father having been president previously. In 1968, Fisher's salary was approximately $12,000 a year.

In the summer or fall of 1968, the defendant advised Fisher of the availability for purchase with no money down of accounts receivable and suggested formation of a corporation. Fisher then formed Cirt Research, Inc. These accounts receivable were "bad debts" of the Brighton Bank and Trust Company. Fisher testified that the defendant arranged for Cirt to purchase such accounts receivable, but that Fisher had never collected more than $15,000 on them and had ceased collecting about June, 1969. Fisher testified that an attorney, Mr. Henry M. Quinlan, had done some collecting thereafter, but Fisher did not know how much was collected. Fisher said that the defendant claimed to him to have collected $100,000 but Fisher knew nothing further about it and had no records to show it. Nothing in Cirt's records authorized the defendant to do anything.

In late July, 1968, the defendant became aware through his brother Edward of the availability for purchase of the Riviera Beach Motel in South Yarmouth. The defendant asked Fisher if he wanted to buy the motel, and advised him that the Brighton Five would finance 100% Of the purchase price plus additional money for renovation and working capital. The motel was closed in the winter. It was purchased by three trusts on August 30, 1968: the 22 Wightman Drive Realty Trust, Merlin R. Fisher, Jr., trustee; the 112 Gilmore Avenue Realty Trust, one John E. McEnaney, trustee; and the 77 Schubert St. Realty Trust, one James J. McKeown, trustee. Fisher put no money of his own into any of these trusts. He claimed that he and his wife owned the trusts or, alternatively, that Octal owned the trusts, but he had no evidence or records to show it. The purchase price for the motel was approximately $1,000,000. The funds were obtained from three [373 Mass. 458] mortgages of approximately $400,000 each from the Brighton Five. The mortgage financing had been arranged by the defendant. During 1969, the motel income was insufficient to meet expenses including mortgage debt. Fisher testified that additional funds were bank wired "from Boston" to the account of Octal in Binghamton, New York, so that mortgage payments could be made. During this period, Fisher was sending the defendant progress reports on the motel and discussed his bank balances with the defendant. During the summer of 1969, Fisher delivered to the defendant checks signed by him and drawn on a general account of the motel with the amount and payee left blank.

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