COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, S.S.
SUPERIOR COURT
NO. SUCR2012-11015-20
COMMONWEALTH
V.
DAVID FORLIZZI
MEMORANDUM OF DEFENDANT DAVID FORLIZZI IN
FURTHER SUPPORT OF MOTION TO DISMISS INDICTMENTS
The defendant, David Forlizzi, in the above-entitled matter submits this
memorandum in further support of his Motion To Dismiss Indictments and in response to
the questions posed by the Court, Locke, J., at the conclusion of the hearing on July 30,
2013. At that hearing, the Commonwealth acknowledged that it had issued subpoenas for
the bank records of the attorneys who had been involved in the prior criminal trial of
defendants Forlizzi and Battista. In particular, the Commonwealth caused subpoenas to
be issued to the banks of Bernard Grossberg, Esq., who represented Forlizzi, Joseph
Machera, Esq., who represented Battista, as well as, for the bank records of Andrew
Berman, Esq., who represented co-defendant witness Laura Battista and Michael Cioffi,
Esq., who represented co-defendant witnesses Janet Vaccari, Deanna Pistone and
William Pena. The Commonwealth contended that it was not required by Rule 3.8(f) of
the Massachusetts Rules of Professional Conduct, nor by the Massachusetts Declaration
of Rights, nor by the Constitution of the United States, to request judicial approval, after
an adversary hearing, in order to subpoena an attorney’s bank records as the statute did
not apply to an attorney’s bank records. In addition, the Commonwealth asserted that it
is not required to request to or obtain authorization from a grand jury in order to issue so
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called, “grand jury” subpoenas, for any purpose, including an attorney’s bank records.
The Commonwealth also stated that it may utilize the statutory authority afforded the
Massachusetts Insurance Fraud Bureau by G.L. ch. 338; ch. 398, §99; Ch. 427, §13; and
ch. 279, §5, to obtain Massachusetts Department of Revenue records, including tax
returns, of individuals, including attorneys who represented defendants previously under
investigation by the Insurance Fraud Bureau, regardless of the resolution of any such
prior allegations and/or the role of an attorney who previously represented the defendants
in regard to the prior allegations. The legal consequence of the Commonwealth’s
position is that it may do whatever it wants to do! There are no constitutional, nor
statutory limits or restrictions on the Commonwealth’s authority to either issue subpoenas
for an attorney’s bank records or to obtain an individual’s tax records.
In light of the Commonwealth’s representations, every citizen of the
Commonwealth and in particular, attorneys of the Commonwealth and jurists who sit in
the Commonwealth, should be incensed at the Commonwealth’s position! For the logical
extension of the Commonwealth’s position, as demonstrated by the instant case, is that if
the Office of the Attorney General of the Commonwealth or its agents, simply do not like
the outcome of a case, or the zealous representation of an attorney for a defendant that it
unsuccessfully prosecuted or a judge’s decision, the Commonwealth can engage in the
conduct that it employed in this case. The Commonwealth’s conduct cannot be excused
by the rubic that an “investigation was being conducted by the Office of the Attorney
General”. The Commonwealth’s efforts to obtain the attorneys’ bank records and tax
returns was, as the Commonwealth has admitted, of no value in the prosecution of the six
defendants; however, the effect of the Commonwealth’s conduct was to invade the
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attorney-client relationship between the attorneys and their clients; to destroy the privacy
rights of the involved attorneys, as well as, uninvolved individuals and instill a chilling
effect on all other attorneys who may represent defendants prosecuted by the Office of
the Attorney General. Given the Commonwealth’s conduct in this matter, this Court
must impose an appropriate prophylactic measure so that the Commonwealth cannot
continue such procedures with complete impunity.
I.
The Defendant’s Prior Trial
At the outset, the chronology of events in the prior prosecution of the defendant,
Commonwealth v. Forlizzi, Suffolk County Superior Court No. SUCR2008-10272, must
be noted in order for this Court to fully assess the impropriety of the Commonwealth’s
conduct. On March 27, 2008, defendant Forlizzi was charged with the offenses of
conspiracy, larceny over $250, attempt to commit a crime, for events which occurred in
2006. The substance of the Commonwealth’s allegations were that:
This matter involves two fraudulent claims, all involving the
defendant, an employee of Winthrop Collision Center. Janet Vaccari
initiated the first claim, who claimed her insurance company, Plymouth
Rock Assurance Corporation that she had rear-ended her 2002 Chevrolet
Malibu with a 1999 Mercedes C280, driven by Laura Battista. Plymouth
Rock paid Laura Battista $7,883.71, who signed her benefits over to
Winthrop Collision Center, which allegedly had serviced both vehicles.
Plymouth Rock also paid $8,420.38 to Vaccari.
Vaccari ultimately admitted that the accident never occurred.
Defendant convinced her to stage an accident, and assisted in the false
claim along with Fred Battista, Laura Battista’s step-son, who is also an
employee of Winthrop Collision Center. Defendant also told Vaccari that
Winthrop Collision was paying $200 to anyone willing to file false motor
vehicle insurance claims.
Deanna Pistone, Vaccari’s daughter, initiated the second claim.
Two weeks after Vaccari’s claims, she claimed to Plymouth Rock that her
1998 Ford Explorer had been vandalized at an MBTA station and had
brought her car to Winthrop Collision Center. She later withdraw her
claim and admitted that the claim was false. She stated that her vehicle
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had blown a tire and had other problems, and that defendant convinced her
to “take care” of her vehicle. When Plymouth Rock contacted Pistone
about making a statement, defendant told Pistone to withdraw the claim.
Commonwealth’s Pretrial Memorandum dated
March 15, 2010 (at 1-2)
Co-defendants, Janet Vaccari, Deanna Pistone, Laura Battista and William Penta,
1/
entered guilty pleas at a joint proceeding on November 24, 2008. The Court, Ball, J.,
sentenced the co-defendants as follows:
Laura Battista: probation for five years; 20 hours of community service per year;
restitution in the amount of $12,941.25.
William Penta: two years in the house of correction, suspended for two years on
probation and concurrent two years probation; 20 hours of community service per year;
restitution in the amount of $4,303.75.
Deanna Pistone: probation for two years; 20 hours community service per year.
Janet Vaccari: probation for a period of five years; 20 hours of community
service per year; restitution in the amount of $8,420.38.
Rather than continuing the sentencing of the four co-defendants until the charges
against defendants Forlizzi and Battista were resolved, the Commonwealth requested and
the Court imposed sentences on each co-defendant. Thereafter, upon receiving
subpoenas to testify at the trial of defendants Forlizzi and Battista, each co-defendant
asserted his or her right against self-incrimination and the issue was finally resolved by
the Supreme Judicial Court in Janet Vaccari and another, Petitioners, 460 Mass. 756
(2011).
Thereafter, defendants Forlizzi and Battista proceeded to trial, which commenced
on March 5, 2012. At a hearing on or about March 1, 2012, the Commonwealth informed
the Court, Quinlan, J., that the four co-defendants had declined to speak with
1
Vaccari and Pistone were represented by Michael Cioffi, Esq., Battista was represented by
Andrew Berman, Esq.; and Penta was represented by L. Nicholas Mancuso, Esq.
4
representatives of the Office of the Attorney General, that the whereabouts of codefendant Pistone was not known and that the Commonwealth did not know the nature of
the co-defendants’ prospective testimony. Counsel for defendants Forlizzi and Battista
also stated that the co-defendants would not confer with either of them and that they were
in the same position as the Commonwealth. Over objection, a voir dire of the three
available co-defendants was conducted. As a result of that hearing, the Commonwealth,
the defendants and their counsel, ascertained the nature of the witnesses’ prospective
testimony. In the face of the fact that the testimony of the immunized co-defendants
would exculpate the defendants, the Commonwealth did not seek a continuance and
elected to proceed to trial. On March 8, 2012, upon the Commonwealth resting and the
motion of defendants Forlizzi and Battista, the Court, Quinlan, J., entered findings of not
guilty as to Counts 1, 2, 7 and 8, ordered Counts 4, 5, 6 to 10 dismissed, and that the
defendants be discharged. At that time, Judge Quinlan stated the following:
Unfortunately, the mere fact that a witness is lying on the stand or
not credible does not – is not a substitute for evidence.
I think the Commonwealth started this case with the anticipation
that – perhaps a naïve one – that the witnesses, once offered immunity,
would testify consistent with the statements that they previously gained.
They didn’t, and they did it with impunity so they think.
And I’m going to do something I haven’t done in all the years I’ve
been on the bench, and I’m going to allow the motions for a directed
verdict. That is an appealable order, and I would urge the Commonwealth
to appeal the order.
I am also going to do something else which I have never done,
either as a lawyer or as a judge, and I am going to recommend that this
matter be investigated for obstruction of justice, for perjury, for
subordination of perjury, and for fraud on the Court. It’s just – and for
disciplinary proceedings. Whatever has happened in this case is a
disgrace.
(Tr. 3/8/12, 4-24-25)
5
In response to Judge Quinlan’s statement, the following exchange occurred:
MR. MACHERA: May I get something on the record?
...
THE COURT: You can put whatever you want on the record.
MR. MACHERA: Your Honor, the word ‘collusion’ has been thrown
around a little bit too much here.
THE COURT: Then maybe you – maybe at this point you may not want
to put it in the record, and wait and see if there is an investigation on that issue.
...
THE COURT: You may not want to talk about that until it’s determined
whether there is going to be some investigation of that fact in this case.
MR. MACHERA: Well, I want the Court to respect us. I know my
brother wouldn’t either. We discussed - THE COURT: And as I said, I know the two of you and I have
professional respect for both of you; but what happened in this courtroom was
wrong, and whether it was orchestrated outside of your control is something I’m
not going to make a determination of or finding of. I’ll leave that to people who
can do it with more dispassion than I can.
MR. GROSSBERG: Your Honor, may I?
THE COURT: You may.
MR. GROSSBERG: Your Honor, I understand your Honor’s concern,
and I can tell, having appeared before you a number of times, how personally
disturbed you were by what you perceived happened here.
What bothers me more is that I cherish the Court’s respect, and I – I just
would like to state that I knew Janet Vaccari by another name, Imbruglia, and by
that name from day one. And I also would know something off the record about
her involvement in other matters. I made a particular effort to not go anywhere
near her because of what she has done in other matters.
But I would express to the Court sincerely that if there was any type of
shenanigans behind the scenes I was not involved, and – and it disturbs me that
your honor would think that I or Mr. Machera would get involved in that.
THE COURT: Well, No. 1, as I told Mr. Machera, and I will tell you,
you’ve appeared in front of me before, I have nothing but the utmost professional
respect for you as a lawyer, you are a good lawyer and you know how to lawyer.
6
On this case, whether it was done outside or inside is not a finding I can
make. I happen to have professional respect, I have never seen you do anything
that would even suggest that you would do any kind of fraud on the Court, or do
anything less than with professional integrity.
This case has a stench to it. Unfortunately, you are involved in this case,
and unfortunately that means that if there is an investigation - - I don’t know
whether there will be because I have no authority in that. All I can do is make a
recommendation or referral; but something happened in this case that just doesn’t
sit right, and the integrity of this system, the integrity of the court has to be
upheld, and it has to be upheld by an independent investigation.
The two of you I consider to be lawyers for whom I have great respect. I
go back to law school with Mr. Machera. I have tried – I have had some very
serious cases tried in front of me by you, Mr. Grossberg. I have no reason before
this case – and I don’t even know what the situation is now - - I can quite frankly
conceive you two had nothing to do with it, but there was somebody else who did,
or there were other people who did who decided this was a good move. What
happened in here is wrong, and it’s going to have to be investigated.
(Tr. 3/8/12, 4-25-31)
During the discovery process in the instant case, counsel learned that on March 8,
2012, Judge Quinlan had forwarded a letter to Attorney General Martha Coakley and
District Attorney Daniel Connolly, which reads as follows:
Dear Attorney General Coakley and District Attorney Conley:
The purpose of this letter is to recommend that an investigation into
perjury, subornation of perjury and obstruction of justice be conducted with
respect to the trial of the above-numbered indictments. I do not make this
recommendation lightly. The testimony given by immunized witnesses during the
trial compels me to recommend that there be an investigation of possible perjury,
subornation of perjury and obstruction of justice.
Since I am unsure of jurisdiction, I am respectfully making this
recommendation to both of you trusting that you can decide the appropriate
jurisdiction.
The above-numbered indictments were tried before me this past week.
The indictments alleged Motor Vehicle Insurance Fraud and larceny. The
defendant Forlizzi was charged as a habitual offender. Today, I allowed a Motion
For Required Findings at the close of the Commonwealth’s case. I did so with
great reluctance considering what had transpired during the trial.
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Four witnesses had been immunized after each had pled guilty to
indictments arising from the same motor vehicle insurance claims, Janet Vaccari,
William Penta, Deanna Pistone (daughter of Janet Vaccari) and Laura Battista
(step-mother of the defendant Battista). After the grant of immunity, Vaccari,
Penta and Battista testified. Vaccari and Penta are represented by Attorney
Michael A. Cioffi. He also represented the witness Pistone who has been among
the missing. I will not recap the testimony given except to state that it was
radically different from statements previously made.
A transcript of the proceedings has been ordered, a copy will be filed with
the Court. All exhibits in the case have been retained and will be available for
your consideration.
Thank you for your anticipated consideration.
Judge Quinlan’s letter recommended that an investigation, “of possible perjury,
subornation of perjury and obstruction of justice” of the immunized witnesses be
commenced. In regard to the attorneys in the case, the judge’s letter only states that
Attorney Cioffi represented three of the witnesses and the letter contains no allegations,
inferences, recommendations or other information regarding Attorney Grossberg, who
represented the defendant Forlizzi or Attorney Machera, who represented defendant
Battista.
During March of 2012, the Office of the Attorney General began an investigation
in response to Judge Quinlan’s letter of March 8, 2012. On April 4, 2012, before the
grand jury was convened, before a witness appeared before the grand jury, before the
Commonwealth ascertained that the co-defendant witnesses had perjured themselves, at
the defendants’ trial before the Commonwealth ascertained that the co-defendant
witnesses recanted their trial testimony and before co-defendant Janet Vaccari testified at
the grand jury on October 19, 2012, the Commonwealth issued so called, “grand jury
subpoenas” for every conceivable bank record in Attorney Grossberg’s account with the
8
Sovereign Bank for the four year period of “March 1, 2008 to the present”. 2/
The
subpoena issued by the Commonwealth, a copy of which is attached hereto as Exhibit A,
demanded every paper and document in Attorney Grossberg’s law office account for the
four year period. The Commonwealth did not notify Attorney Grossberg that it had
caused the subpoena to be issued and the Sovereign Bank complied with the subpoena
with no notice to Attorney Grossberg.
The Commonwealth’s complete disregard for the requirements of Rule 3.8(f),
attorney-client communications (not only between Attorney Grossberg and defendant
Forlizzi, but between Attorney Grossberg and each and every one of his other clients), as
well as, any and all concepts of privacy, is demonstrated by the fact, as stated in the
docket entries, that Attorney Grossberg did not file his appearance in the prior case until
August 13, 2009. For a period of fifteen months, from defendant Forlizzi’s arraignment
on April 15, 2008 to August 13, 2009, when Attorney Grossberg filed his appearance, the
defendant was represented by other counsel. 3/ This scenario is indicative of the
Commonwealth’s cavalier approach to its investigation and abuse of grand jury
procedure, as the Commonwealth did not even deem it appropriate to confirm the period
of time during which Attorney Grossberg represented defendant Forlizzi. Nor, did the
Commonwealth attempt to ascertain from the ethics advisors of the Board of Bar
Overseers, that the procedure it intended to follow was in accordance with the ethical
2
The Commonwealth stated to this Court that it contacted the Board Of Bar Overseers to ascertain
that Attorney Grossberg maintained a required IOLTA account at the Sovereign Bank and inferred that he
most likely conducted his law office banking at the same bank. The Commonwealth was not able to inform
this Court that it had informed the BBO that its purpose in ascertaining the location of Attorney
Grossberg’s IOLTA account was so that it could identify the location of his law office banking and issue
subpoenas for his law office’s banking records. In the case of Attorneys Machera and Cioffi, the
Commonwealth necessarily had to engage in some tactic in addition to contacting the B.B.O., as it issued
subpoenas to numerous banks, mortgage companies, credit bureaus, etc., which are not included in an
attorney’s representation with the B.B.O.
3
Richard Clayman, Esq.
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rules governing subpoenas issued for attorney records. Nor did the Commonwealth try to
limit the scope of its subpoena to Attorney Grossberg’s bank by requesting documents
relating to or pending to certain named individuals, sources or facilities and/or time
periods. As asserted in the Supplemental Argument In Support Of Defendant’s Motion
To Dismiss Indictments, the subpoenas issued by the Commonwealth were unreasonably
overbroad and not necessary to obtain pertinent financial documents.
II
The Commonwealth’s Conduct In Issuing Subpoenas For Attorney
Bank Records In The Name Of The Grand Jury, Usurped The
Authority Of The Grand Jury And Violated Article 12 Of The
Massachusetts Declaration Of Rights
The Commonwealth has displayed unremitted impudence in informing this Court
that the subpoenas issued for the bank records of the attorneys, were, “grand jury
subpoenas” or “subpoenas issued by the grand jury”. The grand jury had no role, nor was
it requested, nor did it authorize in any fashion, the subpoenas for the attorney bank
records. The Commonwealth made thirteen separate presentments to the grand jury, on
April 19, 23, 26, 2012; May 7, 2012; June 11, 2012; July 12, 16, 2012; August 27, 30,
2012; September 6, 2012; October 19, 2012, November 2, 9, 2012. On not one occasion,
or in any regard, did the Commonwealth request or move the grand jury to issue
subpoenas for Attorney Grossberg’s bank records, or for any other attorney’s bank
records.
At the hearing before this Court on July 30, 2013, the Commonwealth argued that
it was unaware of any statute or rule which required the Commonwealth to present a
request and obtain the grand jury’s authorization to issue a subpoena. The absence of a
such specific rule or statute, does not afford the Commonwealth the authority to simply
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issue subpoenas, especially before a grand jury is even convened. In order to protect the
grand jury’s independence, the law of the Commonwealth restricts a prosecutor’s role
before a grand jury. A prosecutor may instruct the grand jury on the law and has “the
right to be present at the taking of testimony for (the) purpose of giving information or
advice touching on any matter cognizable by (the grand jury) and may interrogate
witnesses.” Attorney General v. Pelletier, 240 Mass. 264, 307, 309 (1922). A
prosecutor, however, may not be present during deliberations and voting except at the
grand jury’s request. Mass. R. Crim. P. 5(g), see Commonwealth v. Smith, 414 Mass.
437, 438, 441 (1993). When present, a prosecutor may respond only to requests for
advice on matters of law and may not attempt to influence the jurors in the performance
of their duties. Attorney General v. Pelletier, supra at 309-310. Consequently, a
prosecutor may not testify before the grand jury, express his or her own opinion, make
arguments, or state facts that are irrelevant to the investigation, but which may influence
the grand jurors. Attorney General v. Pelletier, supra at 307-308. These restrictions on
the role of a prosecutor are required as, “…a dishonest, corrupt and vicious district
attorney”, could “use the great power of his office and his influence with the grand jury
as an engine of oppression”. Attorney General v. Pelletier, supra at 308.
In the instant case, the Commonwealth violated these restrictions, by issuing
subpoenas in the name of the grand jury and without a request to or authorization by the
grand jury. The prosecutor exceeded his role which only allowed him to respond to
requests for advice on matters of law. Commonwealth v. Pelletier, supra. As a result of
this procedure, the prosecutor usurped the authority of the grand jury to issue subpoenas.
In addition, by summarily issuing subpoenas in the name of the grand jury, the prosecutor
11
attempted and in fact, influenced the jurors in the performance of their duties.
Commonwealth v. Pelletier, supra. It cannot be said that the issuance of subpoenas for
the bank records of the attorneys who represented the defendants and co-defendant in the
prior case, did not influence the grand jury in its consideration of the evidence presented
to it by the Commonwealth. The act of issuing subpoenas for attorney records, especially
an attorney’s bank records, taints both the attorneys and their prior clients, who were
being investigated by the grand jury. In the same vein, the issuance of subpoenas in the
name of the grand jury for the attorneys’ bank records, resulted in the prosecutor using
the great power of the Office of the Attorney General and his influence with the grand
jury as an engine of oppression, Commonwealth v. Pelletier, supra. The
Commonwealth’s conduct and disregard of Rule 3.8(f), communicates to the bar of the
Commonwealth, that the Office of the Attorney General may do whatever it wants to do
in regard to attorneys, especially attorneys who obtain results which the Commonwealth
does not favor. Such a message serves to oppress attorneys in their representation of
criminal defendants and any form of zealous representation.
The Commonwealth’s issuance of subpoenas in the name of the grand jury may
also be seen as desecrating Article 12 of the Massachusetts Declaration of Rights, which
guarantees the right to indictment as a precondition of trial subjecting a defendant to
“infamous punishment” – death or imprisonment in state prison. Jones v. Robbins, 74
Mass. (8 Gray) 329, 349 (1857). As Article 12 “…was designed in part to prevent judges
from overawing the grand jury or interfering in any way with the independence of its
actions. Its purpose was sedulously to preserve in its integrity the absolute freedom
12
of the grand jury from every outside influence” Attorney General v. Pelletier, supra at
309 (emphasis added) 4/
The Commonwealth’s procedure must also be assessed in the context that the
Commonwealth’s subpoenas practice “threatened the integrity of the grand jury
proceedings” Commonwealth v. Pond, 24 Mass. App. Ct. 546, 550 (1987). The
Commonwealth issuing subpoenas in the name of the grand jury, before the grand jury
convened and without its authorization, played an ignoble part in pursuing the return of
indictments against the defendant. Commonwealth v. Ederly, 13 Mass. App. Ct. 562, 579
(1982). Moreover, it cannot be shown that there was no “reasonable likelihood” that the
Commonwealth’s procedure did not affect the grand jury’s decision to indict.
Commonwealth v. Callagy, 33 Mass. App. Ct. 85, 88-89 (1992), quoting, Commonwealth
v. Kelicoure, 404 Mass. 466, 468 (1989). 5/ The Commonwealth’s issuance of subpoenas
without authority to do so, is a particularly egregious abuse of Article 12’s guarantee of
indictment by a grand jury, as well as, a violation of the defendant’s rights to due process
of law guaranteed him by Article 12 and by the Fifth and Fourteenth Amendments to the
Constitution of the United States. The Commonwealth must be precluded, on this ground
alone, from seeking to re-indict the defendant as its conduct was “willfully deceptive or
otherwise egregious”. Commonwealth v. O’Dell, 392 Mass. 650, 656 (1979).
4
In Attorney General v. Pelletier, supra at 309-310, the Supreme Judicial Court held that it was
improper for the prosecutor to present a series of cases without having the grand jury vote on each case as
presented and thereafter for the prosecutor to refresh the memory of jurors by summarizing facts before the
vote. Such a procedure was a “manifest perversion of grand jury proceedings”, permitting the assistant
district attorney to “substitute his memory for recollection of the grand jurors and is to that extent to
abusing their function”. If a prosecutor summarizing facts before a grand jury vote on returning an
indictment abuses the function of a grand jury, it necessarily follows that issuing subpoenas in the name of
the grand jury without the authorization of the grand jury, similarly abuses the function of the grand jury.
5
This argument is distinct from the defendant’s claim that the Commonwealth was required to
adhere to Rule 3.8(f).
13
The Commonwealth’s unauthorized issuance of subpoenas also constitutes
prosecutorial misconduct which impaired the integrity of the grand jury, Commonwealth
v. St. Pierre, 377 Mass. 650, 655-661 (1979), which was egregious, deliberate and
intentional and which resulted in a violation of the defendant’s constitutional rights to
indictment by a grand jury. The Commonwealth’s flagrant use of the grand jury’s
subpoena power gives rise to presumptive prejudice that warrants the “drastic remedy” of
dismissal of the indictments pending against the defendant. In Re Melvin, 546 F.2d 1 (1st
Cir. 1976) (subpoena to appear in line-up improper because not authorized by the grand
jury). Commonwealth v. Cote, 407 Mass. 827, 831-833 (1990) (prosecutor’s
unauthorized use of grand jury subpoena to acquire telephone message records that were
not presented to the grand jury, but which were introduced at trial was an abuse.) The
Commonwealth’s unauthorized issuance of subpoenas in the name of the grand jury and
in particular, in that the subpoenas demanded the attorneys’ bank records, requires that
the indictments be dismissed.
III.
The Commonwealth’s Seeking And Obtaining The Tax Returns Of
The Defendant’s Counsel Was Unlawful, Unethical And
Unconscionable
One of the most, if not the most, frightening and chilling notification that a citizen
may receive, is that his or her income tax returns have been obtained by and/or are being
reviewed by a governmental agency. Regardless of whether or not there is any sort of
impropriety in the tax returns, the specter of an investigation and disclosure of the
information necessarily contained in a tax return, is frightening. The information
submitted by tax payers in an income tax return is confidential and the fact that such
information is confidential, is one factor which instills a sense of truthfulness in the filing
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of tax returns. This is a reason that state and federal statutes prohibit the disclosure of
income tax returns.
In the Commonwealth’s Exparte Submission And Request For Confirmation That
Certain Tax Records Information Is Not Exculpatory Evidence Within The Meaning of
Mass. R. Crim. P. 14 and during the course of its presentation to this Court on July 30,
2013, the Commonwealth has not offered any reason, let alone, a justification, for its
obtaining the tax returns of the attorneys who previously represented the defendants. The
Commonwealth seeks some sort of “blessing” or exoneration because it disclosed, “out of
an abundance of caution” (Comm. Exparte Sub. at 1) that it sought and obtained the
attorneys’ tax records. The Commonwealth contends that the tax records do not
constitute, “facts of an exculpatory nature” that must be automatically disclosed or that it
is pertinent to the defendant’s pending motion to dismiss. It is difficult to imagine a more
insincere or deceitful response. The Commonwealth made the disclosure because it
feared that its hand would have eventually been discovered “in the cookie jar” by this
Court or as a result of further proceedings. In fact, the Commonwealth’s disclosure
constitutes exculpatory evidence in regard to the defendant’s pending motion to dismiss,
as it is constitutes evidence in the Commonwealth’s possession that could and will
materially aid the defendant in his prosecution of his motion to dismiss. The admission
that the Commonwealth obtained the attorneys’ tax records, definitively exacerbates the
illegality of the Commonwealth’s conduct in obtaining the attorneys’ bank records. The
Commonwealth’s admission is “of significant aid” to the claims of the defendant in
regard to the attorney banking records and it is material to the issue of the
Commonwealth’s malfeasance. Contrary to the Commonwealth’s assertion (Comm. Ex
15
Parte Sub. at 11), the disclosure of the tax returns will and must make a great difference
in this Court’s adjudication of the Commonwealth’s conduct and in its consideration of
the motion to dismiss. The Commonwealth’s obtaining the tax returns, is material
exculpatory evidence, which the Commonwealth is required to disclose in regard to the
defendant’s motion to dismiss. In addition, as evidenced by this Court’s, Locke, J.,
decision to conduct a bench conference at the hearing on July 30, 2013, after the
Commonwealth disclosed that it had obtained Attorney Grossberg’s tax returns, it cannot
be said by the Commonwealth, as it claims, (Comm. Ex Parte Sub. at 11-12), that the
defendant has not been prejudiced in any way, or that the tax returns will have no impact
on the defendant’s attorney-client relationship “because he was unaware that his
attorney’s tax returns were gathered”, as the defendant and his attorney are now aware of
the Commonwealth’s further unlawful conduct.
The illegality of the manner in which the Commonwealth obtained Attorney
Grossberg’s tax returns is clearly evident and defendant Forlizzi relies on and reiterates
the grounds raised in defendant Battista’s Supplemental Memorandum In Support Of
Motion To Dismiss, in particular, the contention that the Commonwealth’s conduct in
obtaining Attorney Grossberg’s tax returns, subverted the IFB’s enabling statute and
agreement with the DOR”. (Comm. Ex Parte Sub at 12). The Commonwealth’s excuses
are more than disingenuous, as the issue is the obtaining of an attorney’s records, whether
by subpoena or “administrative letter” in violation of Rule 3.8(F). 6/
6
In the Commonwealth ExParte Sub at 7, the Commonwealth disclosed that on June 1, 2012, its
agent, IFB Investigator Rose Bagalawis, the lead investigator in this matter requested IFB Senior
Investigator Sean Kelly to obtain the tax records of 16 individuals, including all attorneys in the prior case.
On June 5, 2012, Kelly sent a request to DOR for the tax records for the years 2007 to 2011. The first
batch of income tax records were produced to the Office of the Attorney General on or about July 16, 2012.
(Id. at 8) Once again, as in the situation involving the attorney bank records, the Commonwealth did not
request nor receive authorization from the grand jury to obtain the tax records. In addition, the tax records
16
The question which cries out and which supports the defendant’s claims that the
indictments must be dismissed and the question which the Commonwealth does not and
cannot answer, is, what was the purpose, the ground, or the rational for the
Commonwealth seeking and obtaining the attorneys’ tax returns. It is simply beyond
comprehension, that there was information of any nature that could be obtained by the
Commonwealth’s review of the attorney’s tax records that would assist its investigation.
7/
What could the Commonwealth have envisioned to learn by obtaining the attorneys’
tax returns? The fact that Assistant Attorney General Brendan O’Shea does not recall
reviewing the attorneys’ tax returns and/or that the returns were not reviewed by other
members of the investigative team (Comm’s Exparte Sub. at 8), begs the question. If the
attorneys’ tax returns were not deemed worthy of being reviewed by anyone in the Office
of the Attorney General after being specifically requested and received, why were the tax
returns obtained by that office? As was stated at the hearing on July 30, 2013, could the
Commonwealth have honestly believed that an attorney would have listed a bribe to a
witness as a business expense or deduction on his tax return? 8/
The fact that the Commonwealth’s conduct in this matter was unlawful, unethical
and abusive, does not adequately describe the problem created by the Commonwealth’s
conduct in obtaining the attorneys’ tax returns. The ramifications of the
Commonwealth’s conduct transcends the issues raised in the instant case and may effect
were obtained prior to any evidence being presented to the grand jury that the co-defendant witnesses had
committed perjury at the prior trial. Janet Vaccari did not testify before the grand jury until October 19,
2012.
7
It is of no import that the Assistant Attorney General Brendan O’Shea “does not remember
reviewing “the attorney’s tax records and that other members of the investigative team did not review the
records (Comm Ex Parte Sub. at 8) The fact that is relevant, is that the Commonwealth obtained and has
the attorney’s tax returns.
8
Attorney Grossberg’s tax returns for 2007 and 2008, two years prior to his entry into the case on
8/13/09, were requested and obtained by the Commonwealth. (Comm. Exparte Sub. at 7)
17
persons who have no involvement or connection to this case. For instance, assuming
arguendo, that an attorney filed a joint tax return with his spouse (as virtually all married
persons do); that the spouse is an attorney; that the spouse is employed in a “highly”
sensitive financial position; that the slightest hint of an investigation of, let alone,
questioning of the joint tax returns, may jeopardize the spouse’s means of making a
livelihood, the Commonwealth’s conduct must be found to be unconscionable. The very
purpose of the prohibition of the disclosure of state tax returns under G.L. ch. 62C,
§21(a) were violated by the Commonwealth’s conduct. This Court must impose a severe
sanction for the Commonwealth’s conduct, which will not only address this case, but
which will serve as a deterrent for any such future endeavors by a law enforcement
agency of this Commonwealth.
IV
Whether Or Not The Attorneys Were Targets Of The Grand Jury’s
Investigation, Does Not Condone The Commonwealth’s Failure To
Comply With Rule 3.8(f)
In the Commonwealth’s Exparte Submission (at 5), the Commonwealth avers that
the six defendants were targets of the Attorney General’s investigation and that the four
attorneys, were “potential targets”. In treating the attorneys as “potential targets” at the
initiation of the investigation, the AGO relied on the fact that Justice Quinlan, an
experienced Superior Court Judge, had not ruled out the involvement of the attorneys in
the misconduct she had witnessed” Id at 5. The Commonwealth utilizes the term
“potential targets”, as Judge Quinlan did not state that either Attorney Grossberg or
Attorney Machera’s conduct was questionable. Moreover, neither attorney was
referenced in Judge Quinlan’s letter of March 8, 2012 to the Attorney General as she only
referred to Attorney Cioffi’s representation of three of the witnesses. Whether or not
18
there was a party for defendant Forlizzi that Attorney Cioffi attended (Comm’s Exparte
Sub. at 5, N.5) is of no relevance to Attorneys Grossberg and Machera. Assuming that
Judge Quinlan had not explicitly ruled out the involvement of the attorneys in the
recommendation she made, she had not stated in any regard that Attorneys Grossberg
and/or Machera, were “ruled in” or suspected of being involved in that conduct. Given
the ambiguous nature of Judge Quinlan’s recommendation that an investigation be
initiated, in retrospect, the Commonwealth now contends that the attorneys were
“potential targets” in an effect to avoid the requirements of Rule 3.8(f). In addition to the
ambivalent aspect of Judge Quinlan’s letter, the Commonwealth could not assert that the
attorneys were targets of any nature, until the co-defendant witnesses appeared before the
grand jury and recanted their trial testimony. Such testimony, however, in the case of
defendant Forlizzi was not received by the grand jury until co-defendant Janet Vaccari
testified on October 19, 2012, whereas, the Commonwealth had issued subpoenas for the
attorney bank records on April 4, 2013, before the grand jury convened, when the role of
the attorneys in subordinating perjury was not even presented to the grand jury. The
sequence of events negates the Commonwealth’s claim that the attorneys were “potential
targets” when it issued the subpoenas for their bank records.
Assuming that the attorneys were targets or potential targets of the grand jury’s
investigation, this assumption does not condone or excuse the Commonwealth’s failure to
comply with the requirements of Rule 3.8(f). The Rule does not include exceptions to its
requirements, including a situation in which an attorney is a target of a grand jury
investigation. For, the intent of the Rule is to protect the sanctity of the attorney-client
relationship. In Re Grand Jury Investigation, 407 Mass. 916, 917-918 (1990); United
19
States v. Kluboch, 832 F.3d 649, 657-658 (1st Cir. 1987). By requesting judicial approval
after an adversary hearing, for the issuance of subpoenas to an attorney or for the
attorney’s records, the Rule protects the attorney’s relationship with the involved client
and the attorney’s relationship with every other client. The status of the attorney cannot
be substituted for the purpose of the Rule to protect the attorney-client relationship. By
avoiding the requirements of the Rule, the Commonwealth in this case invaded the
attorney-client relationship between Attorney Grossberg and the defendant and his other
clients, which the Rule was designed to prevent. It must be noted that the
Commonwealth’s investigation was not of an attorney who may have committed some
sort of criminal offense by his or her actions alone, but rather an investigation of the
attorneys’ representation of particular clients. The dangers of violating attorney-client
relationships in such situations was very recently explained by the Supreme Judicial
Court in Preventive Medicine Associates, Inc. v. Commonwealth, ___ Mass. ___ (2013,
SJC No. 11252, July 15, 2012. Although that case involved the Commonwealth’s search
of emails, the Court stated:
Given the constitutional command of reasonableness and in light of the
risk involved to the integrity of a defendant’s attorney-client privilege, we
conclude that in the future, when the Commonwealth seizes pursuant to a
search warrant the emails of a defendant under indictment, before any
search of those emails may take place, the Commonwealth must present to
a Superior Court judge and obtain the judge’s approval of the search
protocol to be used and specifically the procedures proposed to protect
against searches of privileged communications between the defendant and
his attorneys. (24) Court supervision is necessary because the harm to the
defendant could be irreparable if the Commonwealth viewed privileged
materials, even if only by accident. (25) Further, unless the
Commonwealth can demonstrate a compelling contrary reason, the
defendant must have an opportunity to be heard before the judge approves
a particular search method. (26)
Id. at 7
20
The Supreme Judicial Court proceeded to explain that:
It is possible, as the defendants argue, that government intrusion into the
attorney-client privilege may rise to the level of a violation of a
defendant’s Sixth Amendment rights, for the attorney-client privilege “is
key to the constitutional guarantees of the right to effective assistance of
counsel and a fair trial.” United States v. Neill, 952 F. Supp. 834, 839
(D.D.C. 1997). See Commonwealth v. Fontaine, 402 Mass. 491, 496
(1988) (“monitoring of privileged communications between a defendant
and his attorney touches the core of the right to counsel”). Nonetheless,
courts generally have held that a violation of the attorney-client privilege
implicates the right to counsel “only under certain circumstances - specifically, when the government interferes with the relationship between
a criminal defendant and his attorney,” and that interference “substantially
prejudice[s] the criminal defendant. Partington v. Gedan, 961 F.2d 852,
863 (9th Cir.), cert. denied sub nom. Partington v. Lum, 506 U.S. 999
(1992).
Id. at 8
Whether the attorneys were targets or “potential targets” of the grand jury’s
investigation is not controlling and indeed, is of no legal significance in assessing
whether or not the Commonwealth was required to adhere to the requirements of Rule
3.8(f), as the relevant issue is whether or not the Commonwealth’s conduct violated an
attorney-client relationship. The Commonwealth’s issuance of subpoenas for the
attorneys’ bank records violated their respective attorney-client relationships and cannot
be condoned by this Court.
V
This Court Must Fashion An Appropriate Remedy To Address The
Commonwealth’s Conduct
The Commonwealth issued subpoenas for the attorneys’ bank records; the
subpoenas were issued in the name of the grand jury; the Commonwealth was not
authorized by the grand jury to issue subpoenas for the attorneys’ bank records; the
Commonwealth’s issuance of subpoenas for the attorneys’ bank records usurped the
authority of the grand jury; the Commonwealth’s issuance of subpoenas for the attorneys’
21
bank records violated the defendants’ rights to indictment by a grand jury guaranteed
each of them by Article 12 of the Massachusetts Declaration of Rights; the
Commonwealth had no authority nor justification for obtaining the income tax returns of
the attorneys; there was no reason or justification for the Commonwealth obtaining the
income tax records of the attorneys; the Commonwealth obtained the income tax records
of the attorneys by subverting the IFB’s enabling statute by which that agency is
statutorily authorized to obtain tax records; the Commonwealth did not comply with the
requirements of Rule 3.8(f) of the Massachusetts Rules of Professional Conduct in
obtaining either the attorneys’ bank records or income tax records; and Rule 3.8(f)
applies to subpoenas and/or administrative letters demanding an attorney’s bank records
or income tax returns. Given each of the Commonwealth’s violations and the collective
nature of the Commonwealth’s conduct, the constitutional sanctity of the attorney-client
relationship, demands that this Court impose a remedy which not only addresses the
Commonwealth’s conduct in this matter, but which also serves as a deterrent to any such
future Commonwealth by the Office of the Attorney General or by any other prosecuting
authority of this Commonwealth. Since the grand jury received evidence as a result of
unauthorized subpoenas and/or subpoenas issued in violation of Rule 3.8(f), this Court
has, “a full panoply of remedies”, including, “presentation of the evidence to a different
grand jury without the subpoenaed evidence … suppression of the evidence without a
different grand jury or, in an especially egregious case, the dismissal of the indictments.”
22
In The Matter Of A Grand Jury Investigation, 407 Mass. 916, 919 (1990). The defendant
respectfully suggests that this Court impose the following remedies:
(1) Order that the indictments be dismissed with prejudice. The Supreme
Judicial Court’s holding in Commonwealth v. Manning, 373 Mass. 438 (1977) supports
such a remedy as the Court 36 years ago stated that:
As a general rule, ‘any violation of a constitutional right gives rise
to presumptive prejudice, which normally requires a reversal of the
conviction, in the absence of an affirmative showing by the
Commonwealth that the error was harmless.’ In the case now before us,
we need not invoke a presumption of prejudice, as implicit in the motion
judge’s finding that there had been no ‘serious’ impairment of the
attorney-client relationship is a finding that the defendant had in fact been
prejudiced to some extent. ‘The right to have the assistance of counsel is
too fundamental and absolute to allow courts to indulge in nice
calculations as to the amount of prejudice arising from its denial.’ . . .
Id. at 443 (citations omitted)
The focus must be rather on the remedy necessary to cure the impairment.
Id. at 443-444
...
We also think that a stronger deterrent against the type of conduct
demonstrated here is necessary.
Prophylactic considerations assume paramount importance
in fashioning a remedy for deliberate and intentional violations of
constitutional rights. Such deliberate under mining of constitutional rights
must not be countenanced. The specific misconduct present in this case is
particularly troublesome because only when the importunings of
government agents are unsuccessful will the matter come to the attention
of the courts, and there is, in turn, a grave danger that the courts
themselves may become the instrumentality through which government
agents may effectuate threats to defendants regarding the consequences of
asserting constitutional rights.
...
23
The indictment itself is so inextricably interwoven with the
misconduct which preceded it that the only appropriate remedy here is to
dismiss the indictment. However, while we at this time adopt no rule of
general applicability, we wish to leave no doubt that such conduct will not
be tolerated in our criminal justice system.
Id. at 444-445 (emphasis added)
In accordance with the Supreme Judicial Court’s explicit warning, the
Commonwealth’s conduct in this matter cannot be tolerated and the indictments must be
dismissed.
In the alternative:
(2) Order that the indictments be dismissed without prejudice. If the
Commonwealth elects to do so, the case may be re-presented to a new grand jury with the
proviso and specific condition, that the Commonwealth may do so without the use,
inclusion or presenting any and all evidence obtained by the issuance of subpoenas which
were not authorized by the prior grand jury and/or which were obtained in violation of
Rule 3.8(f), including, but not limited to, any and all attorney bank records, attorney
income tax returns, and any and all other evidence obtained as a result of unauthorized
subpoenas.
In addition to the above, this Court must also order the Office of the Attorney
General to provide Attorney Grossberg and each of the other involved attorneys, with a
detailed accounting, signed under oath, of any and all attorney bank records, income tax
returns and/or other such attorney-client documents, that the Commonwealth obtained in
this matter, by subpoena or by other means; that such an accounting include any and all
copies in digital, paper or other form; that the Commonwealth obtain each and every
24
such copy; and that each and every such copy be delivered to the Attorney Grossberg and
each of the other involved attorneys, to do what they will with the documents.
Respectfully submitted
By his attorney,
__________________________
Bernard Grossberg
15 Broad Street
Suite 240
Boston, MA 02109
(617) 737-8558
B.B.O. No. 212900
CERTIFICATE OF SERVICE
I, Bernard Grossberg, attorney for the defendant in the above-entitled matter,
hereby certify that on August 6, 2013, I served a true copy of Memorandum Of
Defendant David Forlizzi In Further Support Of Motion To Dismiss Indictments,
upon Peter Mullen, Esq., Assistant Attorney General, Office of the Attorney General,
One Ashburton Place, Boston, MA 02108, by pre-paid first class mail.
________________________
Bernard Grossberg
25