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Commonwealth v. Mattier

Supreme Judicial Court of Massachusetts, Suffolk

May 13, 2016

Branden E. Mattier ( No. 2 ) (and five companion cases [1] )

         Argued January 7, 2016

         Amended July 15, 2016.

Page 262

           Indictments found and returned in the Superior Court Department on August 29, 2013.

         A pretrial motion to suppress evidence was heard by Kenneth W. Salinger, J., and the cases were tried before Jeffrey A. Locke, J.

         The Supreme Judicial Court granted applications for direct appellate review.

          Rebecca A. Jacobstein, Committee for Public Counsel Services, for Branden E. Mattier.

          William S. Smith for Domunique D. Grice.

          Randall E. Ravitz, Assistant Attorney General ( Gina M. Masotta, Assistant Attorney General, with him) for the Commonwealth.

         Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.


          [50 N.E.3d 161] Hines, J.

          The defendants, Branden E. Mattier and his half-brother Domunique D. Grice, were convicted by a jury on indictments charging one count each of conspiracy to commit larceny, G. L. c. 274, § 7, and attempted larceny, G. L. c. 274, § 6. Mattier also was convicted on an indictment charging one count of identity fraud, G. L. c. 266, § 37E. The charges stemmed from an attempt by the defendants to defraud One Fund Boston, Inc. (One Fund), of approximately $2 million by claiming that a long-deceased aunt had been injured in the 2013 bombing at the finish line of the Boston Marathon.[2] The judge imposed on each defendant a State prison sentence of from three years to three years and one day on the conspiracy count and three years' probation on the attempted larceny count, to run from and after the committed sentence. Mattier was sentenced to an additional concurrent probationary term for his conviction of identity fraud. The defendants appealed, and we granted their applications for direct appellate review.[3]

Page 263

          Although the appeals were not formally consolidated, we have treated them as such, given the substantial congruence of the issues raised by the defendants.[4] Mattier contends that his conviction of identity fraud fails as a matter of law because the charged conduct is insufficient to meet the elements of the statute. Both defendants claim that the judge erred in (1) denying the motion to suppress evidence obtained as a result of Mattier's warrantless arrest for the identity fraud and attempted larceny charges; (2) denying the motions for required findings of not guilty on all charges; and (3) denying the motion to strike for cause jurors who donated to One Fund. Grice also challenges statements made by the prosecutor in closing argument.

         We agree, for the reasons explained below, that Mattier's identity fraud conviction fails as a matter of law. Our ruling on the validity of the identity fraud conviction, however, does not compel the reversal of the conspiracy and attempted larceny convictions, because they are based on sufficient legally obtained evidence. The claimed errors regarding the seating of jurors and the prosecutor's closing argument similarly are unavailing.


          We recite the facts the jury could have found, reserving certain details for our discussion of the specific issues raised. After two bombs exploded near the finish line of the Boston Marathon on April 15, 2013, One Fund was established. See note 1, supra. In early May, 2013, the administrator of One Fund held two community meetings to discuss distribution. Mattier and Grice attended one of the meetings, and Mattier registered [50 N.E.3d 162] on One Fund's Web site the following day. On May 15, 2013, One Fund disseminated the claims protocol to those persons registered on One Fund's Web site. The levels of payment were based on severity of injury, with the largest amount going to those victims who suffered double amputation. The protocol required that a claimant submit a " hospital statement" confirming the dates of hospital treatment and the nature of the injury. All claims were due by June 15, 2013.

         One Fund received a claim form from Mattier on June 12, 2013, stating that Mattier's aunt had been injured in the bombing and had required double amputation as a result of her injuries. Mattier requested that the claim disbursement check be made payable to him at his Boston address. On June 7, he signed the claim form as representative for his aunt, and his signature was

Page 264

notarized. Attached to the claim form was a signed letter purporting to be from Dr. Peter A. Burke, chief of trauma services at Boston Medical Center. The letter, dated May 2, 2013, stated that both of the aunt's legs had been amputated as a result of injuries from the marathon bombings.[5]

         One Fund administrators suspected that Mattier's claim form might be fraudulent and conducted an internal investigation. After learning that the aunt died in 2000, they rejected the claim. One Fund administrators alerted the Attorney General's office of the false claim.

         As part of the Attorney General's investigation into the matter, the police created a " sting" operation using an overnight courier to deliver a letter to Mattier's residence on July 1, 2013, which stated that the claim had been approved and a check would be arriving July 2, 2013. On July 1, police officers observed Mattier sign for and accept the letter outside his residence while holding his cellular telephone. Subsequently, the police officers obtained a search warrant for Mattier's residence and for Mattier himself at that location.

         On July 2, 2013, police conducted a controlled delivery of a fake check to Mattier. State police Trooper John Banik drove to Mattier's residence dressed as a FedEx delivery driver in a white van bearing a FedEx logo. Mattier was standing just outside his apartment building when Trooper Banik arrived. The two walked toward each other and met on the sidewalk in front of Mattier's apartment building. Trooper Banik asked Mattier to produce his driver's license and, after explaining that he was delivering a claim check, asked whether Mattier was injured in the bombings. Mattier responded that his aunt had been injured. The trooper copied Mattier's driver's license number onto his paperwork and handed Mattier the envelope. Other police officers in the area then surrounded Mattier and arrested him for identity fraud and attempted larceny.

         During booking, Mattier's cellular telephone was placed into his property inventory. After being given the Miranda warnings, Mattier waived his rights and spoke with Trooper Banik. He admitted to submitting the claim on behalf of his long-deceased aunt and explained how he created the doctor's letter using forms obtained from the Internet. Trooper Banik obtained Mattier's

Page 265

cellular telephone from inventory, placed it in his office, and obtained a search warrant authorizing the search of the telephone.

          [50 N.E.3d 163] The search produced hundreds of cellular telephone text messages between Mattier and Grice. The brothers corresponded about One Fund on the day of the community meeting they had attended, expressed their joy at receiving news that their claim had been approved, and ruminated about the type of Mercedes Benz vehicle that each would buy using the funds awarded on their claim. In one of the text messages, sent before Mattier created the forged letter regarding their dead aunt's claimed injuries, Grice wrote to Mattier: " Subject: Auntie, Nevie Shelton ss# Hospitalized from 4-15-13 til 5-3-13 18 days. Yes to double amputation and permanent brain damage."


          1. Identity fraud.[6]

          General Laws c. 266, § 37E ( b ), criminalizing identity fraud, provides:

" Whoever, with intent to defraud, poses as another person without the express authorization of that person and uses such person's personal identifying information to obtain or to attempt to obtain money, credit, goods, services, anything of value, any identification card or other evidence of such person's identity, or to harass another shall be guilty of identity fraud and shall be punished by a fine of not more than $5,000 or imprisonment in a house of correction for not more than two and one-half years, or by both such fine and imprisonment."

          The essential elements of the crime are that a defendant " (1) posed as another person; (2) did so without that person's express authorization; (3) used the other person's identifying information[7] to obtain, or attempt to obtain, something of value; and (4) did so

Page 266

with the intent to defraud." (footnote omitted). Commonwealth v. Giavazzi, 60 Mass.App.Ct. 374, 376, 802 N.E.2d 589 (2004). The essence of the Commonwealth's case was that Mattier downloaded a template of a letter from the Boston Medical Center onto his computer, composed a letter on the template, copied Dr. Burke's signature onto that letter, and then submitted the letter to One Fund together with his claim form.

         The defendants challenge this conviction on the ground that the particular conduct at issue here was insufficient to establish the first and third elements of the crime. They argue that Mattier did not " pose" as Dr. Burke within the meaning of the statute and that even if he did, he did not obtain or attempt to obtain money from One Fund while posing as Dr. Burke. In rebuttal, the Commonwealth argues that the evidence, taken in the light most favorable to it, Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979), was sufficient to prove that Mattier " pose[d]" as Dr. Burke because the language of the letter implicitly asserted that he, as drafter, was Dr. Burke and that the statute does not require proof that the posing occurred at the same time [50 N.E.3d 164] as the attempt to obtain funds. The trial judge, in denying the defendants' motions for a required finding of not guilty on the identity fraud charges, focused on the " pos[ing]" element and accepted that Mattier did not " directly" pose as Dr. Burke. He noted that the " statute is stretched in this case" because the defendants " did not represent themselves to be Dr. Burke at all. They used Dr. Burke's identity to validate their intended fraud." He then concluded that the jury should decide whether Mattier " indirectly posed as [Dr. Burke] by inserting that dummied up letter."

         The issue before us is whether, on the facts of this case,[8] Mattier's conduct is ...

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