Commonwealth v. Hyde , 88 Mass. App. Ct. 761 ( 2015 )

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12-P-867 Appeals Court
COMMONWEALTH vs. JAMES C. HYDE (and seven companion cases1).
No. 12-P-867.
Essex. June 12, 2015. - December 21, 2015.
Present: Cohen, Green, & Trainor, JJ.
Insurance, Motor vehicle insurance, Fraud and concealment,
Defrauding insurer. Motor Vehicle, Insurance. Fraud.
Larceny. Practice, Criminal, Instructions to jury, Grand
jury proceedings, Indictment. Grand Jury. Evidence,
Intent, Inference, Grand jury proceedings, Relevancy and
materiality, Prior misconduct, Testimony before grand jury,
Credibility of witness. Probable Cause. Witness,
Credibility.
Indictments found and returned in the Superior Court
Department on April 4, 2008.
The cases were tried before Howard J. Whitehead, J.
Edward Foye (David Meier with him) for James C. Hyde.
Sarah E. Dolven for Omar Castillo.
Argie K. Shapiro, Assistant Attorney General (William R.
Freeman, Special Assistant Attorney General, with her) for the
Commonwealth.
1
Five against Hyde and two against Omar Castillo.
2
COHEN, J. Following a multi-year inquiry by investigators
from the Massachusetts Insurance Fraud Bureau and the city of
Lawrence police department, a grand jury indicted the
defendants, James C. Hyde, Michael H. Kaplan, and Omar Castillo,
for crimes arising from the submission of fraudulent automobile
insurance claims.2 The defendants later were tried together
before a Superior Court jury. Hyde, an attorney at the law firm
of Berger & Hyde, P.C., was convicted of two counts each of
motor vehicle insurance fraud (see G. L. c. 266, § 111B),
larceny over $250 (see G. L. c. 266, § 30), and attempted
larceny over $250 (see G. L. c. 274, § 6). Kaplan, a
chiropractor and owner of the Kaplan Chiropractic clinic, was
convicted of three counts of motor vehicle insurance fraud, and
two counts each of larceny over $250 and attempted larceny.
Castillo, an employee of Kaplan Chiropractic, was convicted of
one count each of motor vehicle insurance fraud and larceny over
$250. Before us are the appeals of Hyde and Castillo.3
2
Other individuals also were indicted on fraud charges,
including Leo Lopez and Christopher Ortega, who signed
cooperation agreements and testified against the defendants.
3
Kaplan noticed an appeal, which was stayed while he
pursued a motion for a new trial. After an evidentiary hearing
in the trial court, the motion for new trial was denied.
Subsequently, Kaplan's motion to dismiss his appeal was allowed,
with prejudice.
3
Hyde's convictions resulted from insurance claims submitted
on behalf of clients purporting to have been injured in two
staged automobile accidents -- one alleged to have occurred on
October 1, 2002, and the other alleged to have occurred on
December 20, 2002. Hyde's primary contention on appeal is that
the Commonwealth failed to establish at both the grand jury and
petit jury stages of the case that he knew that these particular
accidents were staged. On this ground, he maintains that both
his pretrial motion to dismiss the indictments and his motion
for required findings of not guilty at trial should have been
allowed. In addition, Hyde argues that the indictments should
have been dismissed for the additional reason that the integrity
of the grand jury proceedings was impaired, and that he is
entitled to a new trial as a result of the erroneous admission
of prior bad act evidence.
Castillo's convictions resulted from his role in helping to
stage the December 20 accident. Castillo argues that there was
insufficient evidence that he knew that statements submitted to
insurance companies with regard to that accident were false,
and, therefore, his motion for required findings of not guilty
should have been allowed. Castillo also argues that he is
entitled to a new trial as a result of the erroneous admission
of checks written to him by Berger & Hyde, P.C. For the
following reasons, we affirm both defendants' convictions.
4
Background. The jury could have found the following facts.
In 2000, Leo Lopez began to work as an assistant and van driver
at Kaplan Chiropractic. Shortly after starting the job, Lopez
brought his mother to Kaplan Chiropractic for treatment of a
work-related shoulder injury. When Kaplan gave him $100 in cash
for bringing his mother in, Lopez learned that it was Kaplan's
policy to pay his employees cash bonuses when they referred new
patients to the clinic. Kaplan later told Lopez that he could
make extra money by setting up motor vehicle accidents. Kaplan
explained how to stage an accident by obtaining two cars (one to
play the "at fault" role, and the other to play the "not at
fault" role), recruiting a driver and passengers for each car,
crashing the cars together, preparing accident reports, and
bringing the accident participants first to a chiropractor and
then to an attorney.
On December 5, 2000, Lopez staged his first accident. He
drove his own car, which he was eager to replace, and arranged
for a woman to hit it with her minivan. The next day, he went
to Kaplan for treatment. At Kaplan's recommendation, Lopez
promptly went to see Hyde at his law firm. At that meeting,
Hyde explained that Lopez would need to accumulate $2,000 in
5
medical bills to have a case,4 and gave him an envelope
containing a check for $200 for bringing the matter to the firm.
Hyde also promised to "take care of [him]" if he referred more
clients.
To build up his medical expenses, Lopez went to a few
actual physical therapy sessions at Kaplan Chiropractic, and
then pretended to receive further treatment. Lopez also went
back to Hyde's office to fill out a personal injury protection
form to obtain no-fault benefits for alleged lost wages,5 even
though he had not stopped working. Hyde eventually settled
Lopez's case for $5,300, from which Hyde took $1,325.
Lopez testified in some detail about the period between
December, 2000, through September, 2002. At first, he staged
"live" two-car collisions, where police and other emergency
responders would be called to the scene. However, by mid-2001,
he had transitioned to staging "paper" accidents. In those
instances, he would obtain and damage two cars, recruit people
willing to pose as the occupants, and fill out paperwork as if a
real accident had occurred. The day after each purported
accident, the persons pretending to be the injured occupants
4
Hyde was referring to the so-called tort threshold that is
a feature of the Massachusetts no-fault insurance scheme. See
G. L. c. 231, § 6D, as amended by St. 1988, c. 273, § 55.
5
See G. L. c. 90, §§ 34A, 34M.
6
would be taken to one of two chiropractors and one of two
lawyers, based on whether they were the designated occupants of
the "at fault" vehicle or the "not at fault" vehicle. The
chiropractor was either Kaplan or another chiropractor who
practiced at Haverhill Family Chiropractic, and the lawyer was
either Hyde or another lawyer who practiced at a different firm.6
Castillo, another van driver for Kaplan, also was engaged
in the scheme. He staged accidents, brought the participants to
Kaplan for treatment, and obtained payments from Kaplan in
return. Castillo, too, was introduced to Hyde, and received
referral fees from Hyde when he brought Hyde new clients.
Lopez's reputation grew to the point where members of the
community would approach him to volunteer their participation.
He enlisted the help of a friend, Christopher Ortega, and paid
him a share of the referral fees. The two would recruit
participants, coach them on their roles in the fictitious
accidents, and tell them how to respond to medical, legal, and
insurance professionals. From December, 2000, through
September, 2002, Lopez referred participants in more than twenty
staged accidents to Kaplan Chiropractic or Haverhill Family
Chiropractic, and to Hyde or the other lawyer involved in these
6
The other chiropractor and lawyer also were indicted, but
those indictments ultimately were dismissed.
7
ruses. Both Kaplan and Hyde would pay Lopez for each individual
whom he referred to their respective practices.
As Lopez became friendly with Hyde, the two had a number of
private conversations where Hyde made specific suggestions about
how best to stage the accidents. For example, Hyde told Lopez
that there were three insurance companies to be avoided, because
they were "really going hard investigating the accidents." On
four or five occasions, Hyde told Lopez to keep the number of
people in a vehicle to no more than three. Ortega testified to
similar conversations with Hyde in which Hyde explained that too
many passengers "would bring up red flags" with the insurance
companies. On the other hand, Lopez also understood from
discussions with Kaplan, that if there were too few passengers,
there would not be enough money. Sometimes Hyde would tell
Lopez that he should "coach" a nervous client "better," in case
the insurance company sent out an investigator to ask the client
questions. Hyde explained that if the client gave a statement
that was inconsistent with the accident report, it would raise
suspicions, and no one would get paid.
Lopez testified that on more than one occasion in the
period from December, 2000, through September, 2002, he told
Hyde that the clients he was referring were from staged
accidents. However, Lopez and Ortega also testified that
sometimes the accident victims they referred were legitimate.
8
Ortega estimated that "20 percent [were] real and the rest
[were] fake."
The October 1, 2002, and December 20, 2002, staged
accidents were both paper accidents. The premise of the October
1 accident was that a Jaguar driven by Antonia Almanzer and
carrying two passengers, was struck in the rear by a Ford
Explorer driven by Kelly Birchall and carrying four passengers.
Birchall was the godmother of Lopez's son, and had agreed "to
take the fall." The accident was orchestrated by Lopez and
Ortega, who damaged the Explorer by driving it into a wall. The
Explorer actually was owned by one of the ostensible passengers,
who was paid $500 for its use as the "at fault" vehicle.
Lopez filled out the operator's report for the purported
driver of the Explorer, supplying information about the two
vehicles, the names and personal data of the occupants, and a
description of the accident, including the time, date, and
location of the collision. Lopez, along with Ortega, also
brought the Explorer passengers to Haverhill Chiropractic and
then to Hyde's law firm. At the law firm, the passengers met as
a group with Miguel Nieves, Hyde's associate. They never met
Hyde, personally. Medical bills were generated, and Hyde
submitted claims on behalf of the passengers. As a result, the
insurer paid more than $250 in medical payments to Haverhill
Chiropractic on behalf of one or more claimants. By check dated
9
October 1, 2002, Lopez received a check for $1,000 from Hyde for
having referred these clients to him.
Accompanied by Nieves, the clients later were examined
under oath by the insurer. Subsequently, on August 28, 2003,
the insurer denied the claims in a letter to Hyde stating that
its investigation revealed that the "accident was not of a
direct or accidental nature." The letter explained that the
examinations under oath "yielded vague and inconsistent
testimony, especially in regards to what happened before and
after the loss"; there were no police, ambulance, or fire
department personnel called to the scene; there were no
witnesses; and accident reconstruction had determined that the
damage done to the vehicles "[did] not support a mutual contact
exchange between the vehicles allegedly involved." Upon
receiving the denial letter, Hyde wrote to his clients informing
them that their claims had been rejected and that he would not
continue to represent them.
The December 20, 2002, accident came about when Castillo
approached Lopez and said that a friend of his, Eddy Ramirez,
wanted his Mazda MPV minivan totaled. Lopez then asked Ortega
to find a second vehicle to play the "at fault" role, so that
they could create another paper accident. The premise of the
December 20 accident was that the MPV, driven by Ramirez and
transporting three passengers, was struck on the side by a Mazda
10
Protege driven by Jose Marti, and carrying three passengers.
Ramirez, having been given the facts of the accident by
Castillo, completed an operator's report and submitted it to his
insurer. At Castillo's direction, Ramirez and his three
passengers went to Kaplan for treatment; Castillo also
accompanied the group to Hyde's law firm. Lopez remembered
going with Castillo to this meeting at Hyde's office, and
informing Hyde in person that he and Castillo were both involved
and that they would be splitting the referral fee.
At the law firm, Ramirez and his passengers dealt
exclusively with Nieves and never met Hyde. Hyde submitted
claims for the clients' medical bills, and the insurer made
payments in excess of $250. Eventually, however, on November
21, 2003, the insurer denied the claims stemming from the
December 20 accident, stating that its investigation had shown
that "the loss did not occur as alleged by [Hyde's] clients."
The insurer explained that the "claimants could not provide
consistent and credible testimony regarding the events
surrounding the loss, and . . . the two vehicles allegedly
involved did not collide as described." Hyde wrote to the
clients informing them of the denial, and discontinued
representing them.
Discussion. 1. Hyde's arguments. a. Sufficiency of the
evidence at trial. Each of the crimes of which Hyde was
11
convicted requires proof that he knowingly made false statements
when he submitted the claims. See Commonwealth v. Charles, 428
Mass. 672, 683 n.8 (1999); Commonwealth v. Jerome, 56 Mass. App.
Ct. 726, 732 (2002).7 Hyde's argument is that even if the
Commonwealth adduced sufficient evidence through Lopez and
Ortega that Hyde knew generally about the scheme, such proof did
not give rise to a reasonable inference that he knew that the
October 1 and December 20 accidents were staged, particularly in
light of the evidence that Lopez and Ortega also sometimes
referred legitimate accidents to him.
We consider Hyde's argument under familiar standards.
Evidence is sufficient to reach the jury, and a motion for a
required finding of not guilty is properly denied, where the
7
A conviction of "[m]otor vehicle insurance fraud, G. L. c.
266, § 111B, requires that (1) the defendant, in connection with
a claim under a motor vehicle insurance policy issued by an
insurer, (2) with the intent to injure, defraud, or deceive such
insurer, (3) did knowingly present to it, or aid or abet in or
procure the presentation to it, (4) a notice, statement, or
proof of loss, (5) knowing that such notice, statement, or proof
of loss contained a false or fraudulent statement or
representation, (6) of any fact or thing material to such claim.
Larceny by false pretenses, G. L. c. 266, § 30 [the theory of
larceny presented to the jury in this case], requires that (1)
the defendant knowingly make a false statement, (2) intending
the person to whom it was made to rely on its truth, (3) the
person to whom it was made relies on the false statement, and
(4) based on such reliance, the person parts with personal
property." Commonwealth v. Charles, 428 Mass. at 683 n.8. The
third charge, attempted larceny by false pretenses, "require[s]
a specific intent to commit the underlying offense, an overt act
towards that commission, and a failure to complete the crime."
Commonwealth v. Bell, 83 Mass. App. Ct. 82, 85 (2013).
12
evidence, viewed in the light most favorable to the Commonwealth
and drawing all inferences in favor of the Commonwealth, would
permit a rational jury to find each essential element of the
crime beyond a reasonable doubt. Commonwealth v. Latimore, 378
Mass. 671, 676-677 (1979). "A person's knowledge or intent is a
matter of fact, which is often not susceptible of proof by
direct evidence, so resort is frequently made to proof by
inference from all the facts and circumstances developed at the
trial." Commonwealth v. Casale, 381 Mass. 167, 173 (1980). See
Commonwealth v. Jerome, 56 Mass. App. Ct. at 732. "To survive a
motion for a required finding, it is not essential that the
inferences drawn are necessary inferences. It is enough that
from the evidence presented a jury could, within reason and
without speculation, draw them." Commonwealth v. Peck, 86 Mass.
App. Ct. 34, 41 (2014), quoting from Commonwealth v. Gonzalez,
47 Mass. App. Ct. 255, 257 (1999). See Corson v. Commonwealth,
428 Mass. 193, 197 (1998).
Here, the testimony of Lopez and Ortega about their
conversations with Hyde established that Hyde knew that they
routinely brought him clients whose accidents were staged.
While neither Lopez nor Ortega testified that he specifically
informed Hyde that the October 1 and December 20 accidents were
fictitious, the jury nevertheless reasonably could infer from
13
the circumstances surrounding these accidents that Hyde knew
they were staged.
Particularly telling was the number of clients brought to
Hyde after each of these accidents. Lopez had testified to his
understanding that if there were too few occupants, the accident
would not generate enough money for all concerned; he also had a
personal incentive to stage accidents involving large numbers of
occupants, because he received fees for each individual he
referred. Indeed, the jury could infer that it was because of
this incentive that, as Lopez testified, Hyde had found it
necessary to discuss with him some four to five times the need
to keep the number of people in the accident vehicles to no more
than three per vehicle, so as not to raise "red flags" with the
insurance companies.
Thus, when four of five occupants of the Ford Explorer
were brought to his office after the October 1 accident, and all
four occupants of the Mazda MPV were brought to his office after
the December 20 accident, Hyde was put on notice that these
accidents most likely were staged. Hyde also would have been
alerted by the fact that, consistent with the attributes of a
paper accident, in neither the October 1 nor the December 20
accident were first responders summoned or independent witnesses
identified.
14
When Lopez and Castillo made a point of informing Hyde that
they were both involved and would split the referral fees
associated with the December 20 accident, that also signaled
that this accident was not legitimate. The jury reasonably
could infer that Hyde would have understood a fee-splitting
arrangement between two individuals known to produce staged
accidents to mean that both had participated in creating it.
Hyde also would have realized when he submitted the claims to
the insurers that the clients he obtained from these accidents
had accumulated substantial medical bills for the treatment of
relatively minor injuries from which they were slow to recover;
and Hyde, no less than the insurers that ultimately denied the
claims, also would have noticed that the damage to the vehicles
and the participants' stories did not coherently explain the
alleged events.
The jury also could consider Hyde's behavior in handling
the claims. Although Hyde was the attorney of record on both
cases, he met with none of the clients he received from the
October 1 and December 20 accidents. Instead, he assigned his
associate, Nieves, to handle all of the personal interactions
with them. The jury reasonably could infer that this was Hyde's
way of distancing himself from claims he knew to be fraudulent.
Also indicative of Hyde's knowledge was his failure to challenge
15
the insurers' denials; instead he promptly abandoned the cases
and the clients.
Hyde emphasizes that the above attributes also could be
consistent with legitimate accidents. However, the aggregation
of so many telltale indications sufficed to permit the
conclusion that Hyde knew that the October 1 and December 20
accidents were fictitious. As this court stated in another case
involving an attorney's submission of fraudulent automobile
insurance claims, "[w]hile each factor by itself likely would
not be enough to support conviction," the "circumstances
present[ed] sufficient evidence of knowledge . . . for a
rational jury to find the defendant's guilt beyond a reasonable
doubt." Commonwealth v. Lonardo, 74 Mass. App. Ct. 566, 570
(2009).8
Hyde's further argument, that the judge erroneously
employed a lower standard than "actual knowledge," is also
without merit. The record reflects that the judge plainly
utilized an actual knowledge standard in ruling that the
8
Hyde accurately points out that Lonardo arose in somewhat
different circumstances. The defendant in that case was
convicted of conspiracy to commit automobile insurance fraud,
and not, as here, of substantive crimes. In the present case,
although Hyde, Kaplan, and Castillo originally were charged with
conspiracy, those counts were not tried, and later were placed
on file with the defendants' consent. Despite this distinction,
however, the basic underlying principle is the same. In proving
its case the Commonwealth was not required to adduce direct
evidence of the defendant's knowledge.
16
Commonwealth's case was sufficient to go to the jury.
Notwithstanding some back and forth discussion of the potential
applicability of the evidentiary principle of "willful
blindness,"9 the judge explicitly decided the motion for required
findings based upon his assessment that "the evidence is such
that the jury could infer actual knowledge with respect to these
two episodes."
The judge's consistent application of the actual knowledge
standard is further shown by his final charge, where he told the
jury repeatedly that the Commonwealth was required to prove that
Hyde had "actual subjective knowledge" that the statements he
made to the insurers were false, and that it was not enough for
the Commonwealth to establish that he was "naive or negligent in
pursuing the truth." Later, when the jury asked during
deliberations whether they needed specific evidence for a
specific indictment, the judge again informed them that it was
9
Under this principle, an individual's knowledge may be
inferred if he intentionally closed his eyes to what would have
been obvious to him. "A willful blindness instruction is
appropriate when (1) 'a defendant claims a lack of knowledge,'
(2) 'the facts suggest a conscious course of deliberate
ignorance, and' (3) 'the instruction, taken as a whole, cannot
be misunderstood [by a juror] as mandating an inference of
knowledge.'" Commonwealth v. Mimless, 53 Mass. App. Ct. 534,
544 (2002), quoting from United States v. Hogan, 861 F.2d 312,
316 (1st Cir. 1988). Attentive to the defendants' arguments,
and concerned that instructing on willful blindness conceivably
could give the jury the erroneous impression that they did not
have to find actual knowledge, the judge here ultimately decided
not to give such an instruction.
17
not enough for the Commonwealth to prove beyond a reasonable
doubt that the defendant knew that false statements were made in
connection with other accidents; the Commonwealth was required
to prove that a false statement was made with respect to the
accident under consideration and that the defendant had actual
knowledge that the statement was false. The judge also
recharged the jury at length on appropriate and inappropriate
inferences, and again explained that any inference establishing
an element, such as knowledge, must be drawn beyond a reasonable
doubt.
b. Evidence of other staged accidents. Hyde argues that
it was unduly prejudicial for the jury to hear evidence of
another staged accident alleged to have occurred on October 10,
2002, which was uncharged as to him.10 Clients from this
accident were brought to Hyde's firm, but the claims were
processed by Hyde's partner, Carl Berger. The judge initially
declined to exclude the evidence on the expectation that the
Commonwealth would establish that Hyde knew about that accident
or was connected with it in some way. However, at the end of
the trial, the judge ruled that the Commonwealth had shown no
such connection between Hyde (or Castillo, for that matter) and
the October 10 accident, and charged the jury accordingly.
10
Only Kaplan was charged in connection with that accident.
18
The judge told the jury that in considering the charges
against Hyde, the jury could not consider any evidence
concerning the October 10, 2002, accident, "because there's no
evidence that Mr. Hyde had any involvement in that matter nor,
in fact, is there any evidence that Mr. Berger himself was aware
that anything was amiss, if in fact it was amiss, with respect
to that accident." He then repeated the instruction for
emphasis a moment later. We are confident that any conceivable
prejudice to Hyde from the admission of evidence about the
October 10 accident was prevented by these pointed instructions.
Hyde also alludes in a footnote to evidence of two other
uncharged accidents dated January 16, 2002, and March 16, 2002.
Because "[a]rguments relegated to a footnote do not rise to the
level of appellate argument," we need not consider his argument.
Commonwealth v. Springfield Terminal Ry. Co., 80 Mass. App. Ct.
22, 42 n.32 (2011) (citation omitted). In any event, Hyde has
demonstrated no abuse of discretion in admitting evidence of
these staged accidents, which was necessary to establish
important background facts about the scheme, including the
origin of concerns about the number of people in a vehicle and
Lopez's transition to staging paper accidents.
c. Grand jury issues. Hyde renews his claims, rejected by
the trial judge, that he was entitled to the allowance of his
motion to dismiss the indictments. He first claims that the
19
grand jury heard no direct evidence that he knew that the
accidents for which he was indicted were staged, and, therefore,
his motion should have been allowed pursuant to Commonwealth v.
McCarthy, 385 Mass. 160 (1982). Hyde does not dispute that the
testimony of several witnesses (including Ortega and two other
referrers who brought him clients from staged accidents)
established that, in other instances, he knew that he was
representing clients whose claims were not legitimate. His
argument is that, as to the October 1 and December 20 accidents,
the Commonwealth impermissibly asked the grand jury to infer
guilty knowledge based upon evidence of wrongdoing at other
times, and that everything he did with respect to the October 1
and December 20 accidents "was as consistent with processing a
legitimate case as processing a known fabricated accident."
In reviewing the evidence before the grand jury we keep in
mind that "an indictment requires a finding of probable cause."
Commonwealth v. Riley, 73 Mass. App. Ct. 721, 726 (2009). This
is a far lower standard than that needed to survive a motion for
a required finding of not guilty at trial. "The quantum of
evidence required to indict and commence prosecution is . . .
considerably less exacting than that required of the petit jury
that adjudicates guilt." Ibid.Here, the circumstantial evidence of Hyde's knowledge about
the October 1 and December 20 accidents was of substantially the
20
same character as the trial evidence previously discussed.
Ortega and two other referrers testified generally about staging
accidents and to conversations with Hyde reflecting his
awareness that he was receiving clients from accidents that were
not legitimate. Ortega testified that, after staging an
accident and bringing the participants to the chiropractor, he
would call Hyde's office to make sure that Hyde was there, bring
in the participants, and give Hyde the accident report. Hyde
would meet with Ortega and Lopez privately in his office and
look through the report to make sure everything was in order.
Hyde would ask if the participants had been coached as to the
facts of the accident, and, on occasion, would dispense guidance
as to how best to set up the accidents so as not to raise any
flags. Ortega specifically testified that he had such closed
door meetings in connection with the charged accidents. This
testimony, as well as other evidence showing that the October 1
and December 20 accidents bore the earmarks of being staged,
permitted the grand jury to find probable cause to believe that
Hyde knew that the claims he submitted as a result of these
accidents were fraudulent. See Commonwealth v. Riley, 73 Mass.
App. Ct. at 731 ("grand jury may . . . infer[] . . . knowledge
and intent from all the facts and circumstances presented").
Contrast Commonwealth v. Reveron, 75 Mass. App. Ct. 354, 357-359
(2009).
21
Hyde also contends that the integrity of the grand jury
proceedings was impaired and, hence, his motion to dismiss
should have been allowed under Commonwealth v. O'Dell, 392 Mass.
445 (1984). However, "[t]o sustain a claim that the integrity
of the grand jury proceeding has been impaired, not only must
the evidence have been given with knowledge that it was false or
deceptive, but the false or deceptive evidence must probably
have been significant in the view of the grand jury and must
have been presented with the intention of obtaining an
indictment." Commonwealth v. Mayfield, 398 Mass. 615, 621
(1986). See Commonwealth v. Mathews, 450 Mass. 858, 876 (2008).
Hyde has not met these criteria here.
Hyde first points to the testimony of an investigator from
the Insurance Fraud Bureau, and, specifically, to the
investigator's testimony about so-called "runners." The
investigator testified to the effect that runners are people
who, under the direction of chiropractors and attorneys,
orchestrate staged accidents and recruit participants for those
accidents. Hyde argues that this testimony improperly implied
that the use of "runners" to bring in business was, in itself,
criminal. As the investigator explained, however, this was how
the term "runner" was used in the insurance industry, and the
investigator did not know how other people would define it.
22
Suffice it to say that the grand jury heard conflicting
testimony on this topic. Ortega testified along the same lines
as the investigator about the role of "runners." On the other
hand, there was testimony from two other witnesses that runners
are simply nonlawyers who bring in clients for a fee. The
function of the acknowledged "runners" in this case, including
Lopez and Ortega, ultimately was for the grand jury to decide
based upon the weight and credibility of the evidence.
Commonwealth v. Riley, 73 Mass. App. Ct. at 727.11
Hyde also points to the testimony of a witness who did not
speak English and who claimed to have spoken with Hyde about
staged accidents through a translator identified only as "Jose."
However, Hyde has not shown that the witness's testimony was
falsely or inaccurately presented to the grand jury in any way.
Even if it was left unclear how well Jose interpreted what Hyde
said to the witness, it was for the grand jury to evaluate the
strengths and weaknesses of this evidence.
Hyde also claims that the Commonwealth failed adequately to
inform the grand jury that Ortega had received inducements to
testify. Citing Commonwealth v. Mayfield, 398 Mass. at 620-621,
11
Another statement of the investigator challenged by Hyde,
that Hyde represented runners who brought accidents to him, was
true, even if not corroborated. Nor do other alleged
inaccuracies in the investigator's testimony rise to the level
of potentially affecting the fairness of the grand jury process.
23
Hyde characterizes such information as exculpatory evidence that
greatly undermined Ortega's credibility. However, we need not
reach the issue, because the grand jury knew full well before
voting on the indictments, that Ortega was benefiting from his
cooperation with the Commonwealth. It is true that the first
time he testified, on September 14, 2007, Ortega stated that
there were no promises made to him in connection with his
appearance at the grand jury proceedings that day. However, the
second time he testified, the Commonwealth asked him a series of
questions about his cooperation agreement, and Ortega admitted
that he had agreed to cooperate with the investigation and had
signed a letter to that effect on July 19, 2007. The agreement
then was presented to the grand jury.
In sum, it is questionable whether any of the challenged
testimony was seriously misleading; but even if the grand jury
heard inaccurate information, Hyde has failed to show that the
Commonwealth offered any testimony knowing that it was false or
deceptive, or that such testimony probably influenced the grand
jury's determination to indict.
2. Castillo's arguments. a. Sufficiency of the evidence
at trial. There is no merit to Castillo's argument that the
Commonwealth failed to prove that he knew that statements made
to insurance companies in connection with the December 20
accident were false. The evidence showed not only that Castillo
24
knew the December 20 accident was staged, but that he had
instigated that accident with the intention of financially
benefiting a friend.
Lopez testified that Castillo approached him about staging
the December 20 accident so that Castillo's friend, Ramirez,
could have his minivan totaled. Castillo told Lopez that he had
his party all set and that all he needed was an "at fault"
vehicle. Lopez and Ortega then found the at fault vehicle and
put together the staged accident. After the accident, Castillo
directed the people in Ramirez's vehicle to Kaplan and Hyde.
Lopez and Castillo went to Hyde's office together to inform him,
in person, that they were jointly involved and would split the
referral fee. This evidence was more than sufficient to
establish that Castillo knew and intended that false claims
would be submitted by Hyde. Any conflicts in the evidence as to
the nature and extent of Castillo's participation were for the
jury to resolve.
b. Admission of checks. Castillo was charged only in
connection with the December 20 accident. He therefore objected
to the introduction of Berger & Hyde, P.C., checks written to
him at other times, on the basis that the jury could draw an
unfair inference that the other checks also represented payments
for insurance fraud schemes that the defendant simply "didn't
get caught on." "Whether evidence is relevant and whether its
25
probative value is substantially outweighed by its prejudicial
effect are matters entrusted to the trial judge's broad
discretion and are not disturbed absent palpable error."
Commonwealth v. Simpson, 434 Mass. 570, 578-579 (2001). See
Mass. G. Evid. § 403 (2015). Here, the judge could conclude in
his discretion that the checks were highly probative of
Castillo's referral relationship with Hyde. Furthermore, the
admission of the checks was cumulative and nonprejudicial. Luke
Goldworm, an investigator with the Attorney General's Office,
testified to the same facts without objection or challenge on
appeal, i.e., that Berger & Hyde, P.C., had issued Castillo six
checks that totaled about $2,500.12
Judgments affirmed.
12
To the extent that we have not specifically addressed
subsidiary arguments in the defendants' briefs, they have not
been overlooked. "We find nothing in them that requires
discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).