Commonwealth v. Kaplan (Lawyers Weekly No. 09-018-17)



NORFOLK, ss.                                                                                              SUPERIOR COURT

  1. 1582CR00580










Memorandum and Order on

Defendant’s “Motion to Dismiss Indictments Due to Impairment

of the  Grand Jury Proceedings”



On July 26, 2013, a vacant family dwelling at 71 Spooner Rd. in Brookline, Massachusetts was consumed by flames. The property was owned by an LLC of which the defendant, Alan Kaplan, was a principal. Kaplan had insured the property for $ 800,000. On September 21, 2015, and Norfolk County Grand Jury returned indictments against Kaplan alleging arson of the dwelling, accessory before the fact to arson, arson of the building, and burning to defraud an insurance company. These indictments came after thirteen meetings of the grand jury stretching from October 17, 2013 through September 21, 2015. The Commonwealth’s theory of the case was that Kaplan, pressed for money, and saddled with a property that had become essentially valueless, solicited an acquaintance named Steve McCann to torch it. The indictments were returned after McCann, who had entered into a plea agreement with the Commonwealth, testified before the grand jury admitting to setting the fire and implicating Kaplan. The matter is now before the court on Kaplan’s motion to dismiss the indictments, because, he argues, “the manner in which the Commonwealth presented the evidence to the grand jury impaired the integrity of … [its] proceedings.”

The familiar and long-standing rule in this Commonwealth is that “a court will not review the competency or sufficiency of the evidence before a grand jury.”  Commonwealth v. O’Dell, 392 Mass. 445, 450 (1984).  There are two notable exceptions to this rule.  First, the Supreme Judicial Court has held that a court may consider whether the grand jury received “sufficient evidence to establish the identity of the accused . . . and [whether there was] probable cause to arrest him.” Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982) (internal citation omitted). The defendant does not argue that the evidence was insufficient to establish probable cause to believe that the crimes for which he has been indicted had been committed, and to believe that he had committed them.  Instead, the defendant relies on the second exception to the general rule, which holds that an indictment may be dismissed where “the integrity of the grand jury proceeding was impaired.”  O’Dell, 392 Mass. at 446-447.  It is the defendant’s burden to show impairment of the grand jury proceeding, and that burden is a heavy one.  Commonwealth v. LaVelle, 414 Mass. 146, 150 (1993), citing Commonwealth v. Shea, 401 Mass. 731, 734 (1988).

As the Supreme Judicial Court has explained,

“[d]ismissal of an indictment based on impairment of the grand jury proceedings requires proof of three elements: (1) the Commonwealth knowingly or recklessly presented false or deceptive evidence to the grand jury; (2) the evidence was presented for the purpose of obtaining an indictment; and (3) the evidence probably influenced the grand jury’s decision to indict.  Commonwealth v. Mayfield, 398 Mass. 615, 620-622 (1986).  Inaccurate testimony made in good faith does not require dismissal of an indictment.  Id. at 620, citing Commonwealth v. Reddington, 395 Mass. 315, 320 (1985).  Failure to present known information also may impair grand jury proceedings in circumstances that warrant dismissal.  See Commonwealth v. Connor, 392 Mass. 838, 854 (1984) (failure to disclose known information that would greatly undermine credibility of important witness); Commonwealth v. O’Dell, 392 Mass. 445, 446-447 (1984) (unfair and misleading to withhold exculpatory portion of defendant’s statement).”


Commonwealth v. Silva, 455 Mass. 503, 509 (2009).  The test requires that the defendant demonstrate “that the prosecutor knowingly distorted . . . evidence or withheld exculpatory information, which, if revealed, would have influenced the grand jury not to indict.”  Commonwealth v. Petras, 26 Mass. App. Ct. 483, 490 (1988).

At the start of the September 21, 2015 grand jury presentation the prosecutor introduced as an exhibit that she identified as “two discs with Norfolk County House of Correction jail calls.” None of these calls were played for the grand jurors, nor were they referenced further by the prosecutor or any witness. The Commonwealth represents, and the court accepts, that the grand jury had at their disposal a device that could play the discs if the grand jurors chose to utilize it. The court has not listened to all of the calls contained on the discs, but accepts as well the defendant’s representation that they contain a total of 78 hours of recorded telephone calls that McCann made while held on bail.

The defendant points to two sets of statements made by McCann while talking to a girlfriend, Venus Cloutier, which he argues are exculpatory. The first is a May 10, 2014 phone conversation wherein Cloutier professed her belief in his innocence and asked whether he would take a plea bargain or “just keep fighting for what you know is right?” McCann replies that he would be willing to accept the disposition of three years or less but adds that “what they want is they want me to tell them that Alan paid me to do it. Which he didn’t. And I didn’t.… They want to tie me and Alan Kaplan together.”  McCann insists that he is “not willing to fuck somebody else’s life up.”  Although it had “crossed [his] mind to sell somebody else down the river just so that [he] can get out,” he “can’t do that” because “it’s not right.”  Cloutier reframed his choice as “putting an innocent person behind bars, or you sit behind bars,” to which McCann responded, “Correct.”

In a supplementary submission to the court, Kaplan points to an April 3, 2014 conversation between the same parties.  Cloutier told McCann that an insurance investigator been trying to get her to persuade McCann to provide incriminating evidence against Kaplan. McCann responded that “if I tell them that somebody hired me to do it, then they get to take down two people. And nobody hired me to do anything, so why would I, why would I do that to somebody who didn’t do anything?  He’s trying to nail down an innocent guy.”

As Kaplan points out, McCann’s statements to the effect that Kaplan is innocent, that he didn’t do anything, and that nobody hired McCann to do anything directly contradict the powerfully inculpatory grand jury testimony that McCann offered against Kaplan little more than a year later. A prosecutor is by no means required to present to a grand jury all evidence that may be exculpatory, but is required to present exculpatory evidence “that would greatly undermine either the credibility of an important witness or evidence likely to affect the grand jury’s decision.”  Commonwealth v. Clemmey, 447 Mass. 121, 130 (2006), quoting Commonwealth v. Wilcox, 437 Mass. 33, 37 (2002).

The motion to dismiss before is court is unusual in that the district attorney did present the statements at issue to the grand jury by means of introducing as an exhibit audio recordings that contained them. Kaplan argues, however, that a mere pro forma introduction of non-testimonial exculpatory evidence whose very existence will not be apparent to the grand jury absent any effort by the Commonwealth to call attention to it is insufficient. He points out that the grand jury had no transcript of the calls in question and that the May 10, 2014 statement at issue comes during the 76th hour of 78 hours of recorded telephone calls. Noting that the grand jury returned the indictments against Kaplan the very same day that all of the recorded calls were introduced, the defendant concludes that, “as the grand jury were not advised to look and listen to the call[s], it beggars belief that they ever did.” The Commonwealth characterizes this argument as “ask[ing] the court to place itself in the jury room, speculate as to what went on during deliberations, and assume that the jurors did not review the evidence that possibly [the defendant] considers exculpatory.” It suggests that “such speculation is not within the purview of the court.”

As a general rule, courts should avoid drawing inferences about the deliberations of juries based on the length of their deliberations. Routinely, petit jurors hear cases in which voluminous medical or financial records are introduced, go to the jury room and deliberate but briefly, then return and deliver a verdict. A disappointed litigant will not be heard to complain that the verdict is invalid because the jury could not possibly have examine the evidence in the available time. At a trial, however, both plaintiff and defendant, or in a criminal case Commonwealth and defendant are represented by counsel, and have the opportunity to highlight such evidence as they wish, both during its introduction in the examination of witnesses, and in closing argument before the jury. No such opportunity exists before the grand jury; if exculpatory evidence is going to be called to their attention, it will have to be presented by the prosecutor.

In Commonwealth v. Rubino, Mass. Super. Ct. No. 00-0528, 2000 WL 33799721 (2000) (Middlesex County Nov. 16, 2000), a justice of this court (Agnes, J.) considered a similar issue in the context of a McCarthy motion. There, the grand jury had returned indictments against the defendant, including two counts of knowingly possessing visual material depicting persons under the age of 18 who are engaged in sexual activity in violation of G. L. c. 272, § 29C.  Id. at *1.  At issue was whether the Commonwealth had introduced sufficient evidence to establish that the defendant knew that the visual images he possessed of people engaged in sex acts involved a child under the age of 18. Id. at *4. To that end, the Commonwealth had marked as an exhibit for the grand jury two videotapes, and argued that the court should presume that the grand jurors had viewed them and made their own reasonable judgment as to the age of those depicted in the tapes. Id. at *5. The court disagreed, observing that “unlike a book, a picture, or a map, or sundry other types of real or physical evidence, the videotape is not an object whose contents are readily discoverable by a simple inspection or examination.”[1]  Id.  Judge Agnes’s analysis is readily applicable the present case.

To conclude that the Commonwealth’s obligation to present significant exculpatory evidence was not fairly discharged by submitting it, unremarked upon, in a form where there was, at best, a remote possibility that the grand jurors might stumble on it does not end the analysis. This court must now consider whether the “withheld” information would have greatly undermined the credibility of an important witness, i.e., McCann, and if so, whether the prosecutor deliberately failed to call attention to the evidence with the express intention of securing indictments thereby.

Kaplan insists that “the Commonwealth’s case [against him] hinges entirely” on McCann’s testimony.  He suggests that so vital to the Commonwealth’s case is McCann’s testimony that the Commonwealth “had to know” that calling the grand jury’s attention to the phone call recordings at issue “would be fatal to the indictment.” The court is not so sure of either proposition.

Before McCann’s testimony the Commonwealth had endeavored to build a circumstantial case against Kaplan. Its evidence would have allowed the grand jury to find that Kaplan was one of three members of an LLC that acquired certain property on Spooner Rd. Their plan was to buy the property, subdivide it, sell the existing home, and build a new home which they would then sell. To that end, in July, 2004, the LLC borrowed about $ 2.6 million for property acquisition and future construction. After securing approval to subdivide the property, they sold the portion with the existing structure (81 Spooner Rd.) for about $ 1.5 million and began constructing a single-family home. The original loan was paid off, and the balance refinanced with a new loan from Hingham Savings. By November 2005, however, the building permit had been suspended because of neighbor complaints about the building/lot ratio. The borrowers litigated the dispute, first with the Zoning Board of Appeals for the Town of Brookline, then at the Land Court, and ultimately at the Supreme Judicial Court. Their loss at that court left them with a non-buildable property and an order to tear down the structure they had started building.

The grand jury could have found that Patnode Insurance Agency sold an $ 800,000 builder’s risk policy to the LLC. The agency had insured a number of other properties for Kaplan. The mailing address for the policy was that of the Village Smokehouse, 6 Harvard square in Brookline a business owned by Kaplan, who assumed responsibility for installment payments on the policy. The grand jury could have credited Richard Patnode’s testimony that unoccupied property that had been vacant for number of years, was the subject of extensive litigation, and had a history of payment problems as did this property would be “a red flag for an insurance company in the event of a fire.”

The grand jury could have found that McCann in July 2013 was pressed for money and that he sent a Facebook message to Julie Swiger saying that he was “ hurt and scared, [that he had] just got a notice stating [he] owed a ton of money.” He also told Venus Cloutier that “unemployment was trying to say that he owed them money.” There was evidence before the grand jury that McCann had met Kaplan when he had worked at Overhead Door, a garage door repair business, and had been sent to repair Kaplan’s garage door, and that subsequently he had done some work as a “bouncer” at a Smokehouse Tavern owned by Kaplan.  Venus Cloutier recounted accompanying McCann to a celebration or party of some sort at Kaplan’s home. McCann was also friendly with Jody Pattison who owns the Tri-State Realty group in Brookline. McCann had told Pattison that he knew Kaplan.  Carolyn Crosier, who dated Pattison briefly, recalled Pattison’s telling her that Kaplan had come up to him at one point, shaken his hand, and “made it known he was friends with” McCann.

Phone records showed a 73 minute conversation between Julie Swiger and McCann on the afternoon of July 25, the day before the fire. Swiger told the grand jury that a few days before the fire, McCann had spoken with her about meeting with an older individual whose wife had cancer, a person the grand jury could readily have found to be Kaplan. The person was a property owner or investor who might be able to help Pattison or his business financially. McCann later complained to her that the meeting had been changed or put off, but was still positive about it. From the testimony of Detective Carlos Crespo, the grand jury learned that an examination of McCann’s cell phone revealed that on July 25 he had exchanged 24 text messages with Kaplan. On that date, at 4:34 p.m., Kaplan texted McCann, “can we make it at my house at six?” McCann agreed.

The grand jury could have credited testimony from Venus Cloutier that before the fire she and McCann had exchanged text messages in which he told her he was going to make money. She worried about how he was going to do so and he told her not to worry “as long as there is no proof.” On the day of the fire McCann sent Cloutier a message reassuring her “if you get any calls from anyone, don’t be scared, I’ll be fine. I’ll be even better if there is no proof of anything.” When she inquired what was going on he said “just doing some side work.” After the fire, while McCann was imprisoned, Cloutier wished to move to a location where she could be nearby. McCann told her that if she could get in touch with the man he worked for before everything happened, that that person would give her the money to put her up in an apartment. He declined to mention the man’s name over the phone but sent her a letter (introduced as an exhibit) saying “I want to send you to Alan Kaplan for money, but I have no idea what his status is.  He may be in jail for all I know.  I’ll work on it and let you know” (emphasis supplied).

There was extensive evidence, which the court need not recount, that McCann set the fire, badly burning himself in the process. The only apparent connection between McCann and the property he torched was his acquaintance with Kaplan.  Cloutier had inferred from what she knew that Kaplan had hired McCann to set the fire; that inference was entirely reasonable. The grand jury, on the basis of considerably more knowledge than Cloutier’s, could have drawn exactly the same inference.  Had the Commonwealth sought, and the grand jury returned indictments against Kaplan prior to McCann’s testimony, the court has little doubt that those indictments would have survived a McCarthy motion.  The circumstantial evidence presented to the Commonwealth may not have amounted to the proverbial “smoking gun,” but “probable cause is satisfied with less than a smoking gun.”  Commonwealth v. Peguero, 26 Mass. App. Ct. 912 (1988).

Of course, the Commonwealth was not content to rest on circumstantial evidence but instead presented powerful testimony from McCann that Kaplan had met with him and asked him to burn down the property on a day where Kaplan himself would be seen to be nowhere near the scene, then met with him later, showing him where to park, what route to use to approach the property, taking him inside the building.  There is no doubt that the phone calls at issue would serve to impeach McCann’s testimony and should have been called to the grand jury’s attention, but the court is not persuaded that there effect would be to “greatly undermine the credibility of his testimony or “likely . . . affect the grand jury’s decision.”  Commonwealth v. Clemmey, 447 Mass. at 130, quoting Commonwealth v. Wilcox, 437 Mass. at 37 (emphasis supplied). McCann’s testimony was consistent with a great many details provided by the witnesses the grand jury had already heard and the evidence it had already examined, including prior statements that McCann had made to witnesses such as Swiger and Cloutier.  McCann’s phone call statements, in contrast, were not. The grand jury would have known that the phone call statements were made over a year before his grand jury testimony, and that McCann knew that his statements were being recorded. There was evidence that he had not been paid by Kaplan, and he may have harbored hopes that his silence or further, his disclaimer of Kaplan’s involvement, might yet reap him financial benefit. As to the May 10, 2014 statement, it is notable that Cloutier began by telling Kaplan that she believed that he was innocent, and described his possible choices as “do[ing] a plea bargain or continuing to “fight” for what he “know[s] is right.” McCann graciously did not dispute these characterizations, and declared that although the authorities wanted to tie him and Kaplan together he was not willing to do that, not willing “to sell somebody else down the river.”  Cloutier then reframed this as “putting an innocent person behind bars,” a characterization that McCann then accepted. Of course, the grand jury would have been keenly aware that McCann was by no means “innocent,” that in fact there was overwhelming evidence of his guilt, and that he was hardly “fighting for” what he knew to be right. Thus the conversational context for his exculpation of Kaplan would have been obvious to the grand jury as a tissue of lies, apparently designed to keep up McCann’s image in front of his girlfriend. Under the circumstances, it is by no means obvious that his exculpatory comment concerning Kaplan would have caused the grand jury serious doubt as to his testimony before them.  One may equally wonder what credit the grand jury would have given McCann’s April 3, 2014 telephone call in which he claimed that “nobody hired me to do anything,” in light of the demonstrable evidence that McCann was in financial need, that he apparently had no animus or any other motive to burn down the property in question, that Kaplan’s money was “tied up” in property that had become worthless and unproductive, that the property was insured for $ 800,000, that McCann knew Kaplan and had done work for him in the past, and that Kaplan had texted McCann and arranged a meeting for the night before the arson. All of this evidence tended to support McCann’s testimony before the grand jury that Kaplan had requested his assistance in burning the property down and promised to “take care of him” if McCann did so; none of the evidence supported the exculpatory statement that nobody hired McCann to do anything.

Notably, the Commonwealth presented the grand jury with other evidence that could have raised doubts about McCann’s reliability, but it apparently did not deter them from crediting his testimony. The Commonwealth disclosed that it had entered into a plea agreement with McCann and set out the agreements effect on the charges pending against him. Thus the grand jury knew that McCann had a strong incentive to give testimony pleasing the Commonwealth. They also knew, for example, that he cheated on his wife. McCann himself told the grand jury that when he went over to work on Kaplan’s garage door that instead of making the repairs on behalf of his employer, he ingratiated himself by telling Kaplan where he could inexpensively secure the parts necessary to do the job and offering to do the work himself for a lesser amount if Kaplan would pay him directly; this, of course, was an act of disloyalty to his employer. The grand jury already knew that after McCann had been dating Venus Cloutier and had temporarily broken up with her, he cultivated an online relationship with Cloutier’s friend Julie Swiger, not out of any real interest in Swiger, but as a way of getting back at Cloutier.  Apparently this ploy met with some success, as Cloutier testified to the grand jury that she believed that in July 2013 McCann was “in an intimate relationship with Julie Swiger.” There was little danger of the grand jury’s confusing Steve McCann with Honest Abe.

Of course, the Commonwealth’s failure to call the grand jurors attention to the exculpatory evidence at issue means that any analysis of the probable effect of that evidence is necessarily speculative. However, “[b]ecause there is no ‘satisfactory, comprehensive statement of what conduct does, and what conduct does not impair the integrity of the grand jury process,” Commonwealth v. Clemmey, 447 Mass. at 130, quoting Commonwealth v. Mayfield, 398 Mass. at 620,” analysis must necessarily proceed “case by case.”  Id.

Reasonable minds may differ as to the probable impact of whether withheld evidence would have greatly undermined the credibility of the Commonwealth’s case. The court’s own analysis, however, does not lead it to believe that if the prosecutor considered the issue at all, she would have so feared calling the jury’s attention to the conversations that she intentionally refrained from doing so out of fear that a properly informed grand jury would not have returned the indictments she sought. More to the point, the court is not aware of any then-existing authority which would have suggested to the prosecutor that simply introducing a CD that contained the conversations necessarily fell short of fulfilling her obligation to present significant exculpatory evidence to the grand jury. Accordingly, the defendant has not shown that the integrity of the grand jury has been impaired.

In sum, the court holds that (1) where the Commonwealth is required to present exculpatory evidence to a grand jury and where, as here, it does so by submitting an object or collection of documents or images whose contents are not readily discoverable by a simple inspection or examination, it must be clearly apparent from the record either that the exculpatory evidence was actually examined by the grand jury or explicitly called to its attention.  More succinctly put, the Commonwealth must make the grand jury aware of the exculpatory needle in the evidentiary haystack. (2)  In the present case, the defendant has not shown that the evidence at issue would have greatly undermined the credibility of a key witness, but even if that conclusion is in error, (3) the prosecutor did not deliberately fail to call attention to the evidence for the purpose of securing the indictments, and therefore, the integrity of the grand jury was not impaired.



The Defendant’s “Motion to Dismiss Due to Impairment of the Integrity of the Grand Jury

Proceedings” is denied.



Robert C. Cosgrove

Associate Justice

August 21, 2017



[1] Judge Agnes nevertheless declined to dismiss the case under Commonwealth v. McCarthy, holding that other evidence before the grand jury sufficed to establish the element at issue.  Commonwealth v. Rubino at *7.

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