January 7, 2016
July 15, 2016.
Indictments found and returned in the Superior Court
Department on August 29, 2013.
pretrial motion to suppress evidence was heard by Kenneth
W. Salinger, J., and the cases were tried before
Jeffrey A. Locke, J.
Supreme Judicial Court granted applications for direct
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
Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines,
N.E.3d 161] Hines, J.
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. 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.
Although the appeals were not formally consolidated, we have
treated them as such, given the substantial congruence of the
issues raised by the defendants. 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.
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.
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.
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
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
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.
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.
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.
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
cellular telephone from inventory, placed it in his office,
and obtained a search warrant authorizing the search of the
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.
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."
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 to obtain, or
attempt to obtain, something of value; and (4) did so
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.
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."
issue before us is whether, on the facts of this
case, Mattier's conduct is ...