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16-P-29                                                  Appeals Court

   COMMONWEALTH       vs.    PETER J. UNITT, THIRD (and six companion
                                    cases1).


                                 No. 16-P-29.

         Middlesex.         December 7, 2016. - February 28, 2017.

               Present:     Cypher, Maldonado, & Blake, JJ.


Bail.  Forfeiture Proceeding.         Practice, Criminal, Restitution.
     Restitution.


     Indictments found and returned in the Superior Court
Department on September 23, 2010.

     A bail forfeiture proceeding was had before Sandra L.
Hamlin, J.


     Dennis M. Toomey for Peter J. Unitt, III.
     James E. McCall for Lee Peck Unitt.
     Melissa Weisgold Johnsen, Assistant District Attorney, for
the Commonwealth.


     BLAKE, J.        The married defendants, Peter J. Unitt, III

(Peter), and Lee Peck Unitt (Lee), jointly operated a law office

in Woburn prior to their arraignment on numerous crimes related



     1
         The companion cases are against Lee Peck Unitt.
                                                                     2


to the theft and embezzlement of their clients' funds.2     Their

adult children, Jade Unitt (Jade) and Peter Unitt, IV (Peter,

IV), posted bail on their behalf.3    Neither defendant defaulted,

and each subsequently was convicted of a subset of the charged

crimes.   This appeal presents the question whether, where no

default occurred, a judge of the Superior Court had the

authority to order that the bail posted on the defendants'

behalf be forfeited and applied toward the restitution they

owed.    Because we conclude that under the circumstances

presented by this case, the judge did not have such authority,

we reverse the order of forfeiture.

     Background.    On October 18, 2010, both Peter and Lee were

arraigned on multiple indictments in the Superior Court, at

which time bail was set at $50,000 cash for each defendant.     On

December 9, 2010, Jade, the defendants' adult daughter, posted

bail on behalf of Lee and was named as surety on the

recognizance.   On February 16, 2011, Peter, IV, the defendants'

adult son, posted bail on behalf of Peter and was named as

surety on the recognizance.    Both recognizance forms, which are

identical, warn the surety of the risk of forfeiting the money


     2
       The office did business as the Crest Group, LLC. Peter
was a lawyer, and Lee, who is not a lawyer, maintained the books
and records, managed the office, and communicated with clients.
     3
       As the defendants and the sureties share a surname, we
refer to them by their first names for ease of reference.
                                                                    3


posted for bail if the defendant defaults, but list no other

potential risks of forfeiture.

     Between their arraignments in 2010, and their convictions

in 2013, each of the defendants appeared for court as required

under the recognizances, thereby satisfying the conditions of

their bail.   In April of 2013, a jury convicted Lee of four

counts of larceny and one count of embezzlement.   Thereafter,

the judge adjudicated her a common and notorious thief.   On May

6, 2013, the judge sentenced her to consecutive terms of two

years to two years and one day on the larceny convictions, ten

years of probation to run from and after the committed sentences

on the embezzlement conviction, and, for being a common and

notorious thief, a twenty-year term of probation to run

concurrent with the committed sentences.   In July of 2013, Peter

pleaded guilty4 to one count of embezzlement by a fiduciary and

was sentenced to two years in the house of correction, 120 days

to serve, with the balance suspended for four years.   The judge

also ordered the defendants to pay restitution, jointly and

severally, to three victims.5




     4
       He pleaded guilty pursuant to North Carolina v. Alford,
400 U.S. 25 (1970)
     5
       The defendants were ordered to pay $190,729.56 to Susie
Lui; $538,645.03 to Kevin Walsh and Susan Walsh; and $69,987.05
to Delores Walsh.
                                                                    4


     Over three dates in June and November, 2013, and January,

2014, the judge conducted hearings to determine whether the bail

posted on behalf of Lee and Peter should be assigned to the

probation department to be applied to the restitution order.

Although no witnesses testified on those dates,6 several

documentary exhibits were admitted in evidence.    Jade submitted

an affidavit stating that the bail money was comprised of two

loans, one from her mother's sister and one from her father's

aunt.    She also averred that "[n]either of the funds used to

bail my parents out belong to my parents, myself, or my

brother."    The other documents included the recognizance forms,

a letter from a victim's civil attorney as to the restitution

amount still owed, a notarized letter from Peter's aunt (with

attached bank statements and record of funds transferred)

stating that the funds sent for Peter's bail were a loan to

Jade, and Jade's bank statement indicating a $50,000 deposit in

Jade's account from a bank in Singapore.7

     On January 30, 2014, the judge issued a memorandum of

decision finding that "the credible evidence is that the $50,000

posted each by [Lee and Peter] were in effect loans which became

the property of [Lee and Peter] with Jade Unitt serving as the

     6
       It appears from the record and the judge's decision that
Jade had notice of the June, 2013, hearing, while Peter, IV, had
notice of the November, 2013, hearing.
     7
         It is undisputed that Lee's sister resides in Singapore.
                                                                   5


conduit since her parents were in jail and unable to physically

post the bail."   In reaching her finding as to Lee, the judge

acknowledged Jade's affidavit and the bank record showing a

deposit from Singapore, but relied upon her memory of Lee's

trial testimony8 and the lack of affidavits from either Lee or

her sister, in concluding that the loan was a sham.   In so

finding, the judge acknowledged that she did not have a

transcript of the trial before her.9   As for Peter's bail, the

judge made a passing reference to the notarized letter of

Peter's aunt, but again relied on the lack of an affidavit from

Peter, himself, denying that the money was his.

     Having found that the loans were shams and that the bail

money actually belonged to Lee and Peter, rather than returning

the money to the sureties, the judge ordered that the bail of

each defendant be forfeited and applied equally to the

restitution owed each victim.   The defendants appeal, arguing

that bail must be returned to the sureties when, as here, the

conditions of bail have been satisfied.10


     8
       The judge recalled Lee testifying to her own wealth (that
had been deposited off-shore), "and that at any time she could
call her sister in Singapore and her sister would send [Lee's]
money to her."
     9
       Nor have any trial transcripts been provided by the
defendants on appeal.
     10
       The Commonwealth argues that the defendants lack standing
to challenge the bail forfeiture. The recognizance forms
                                                                     6


     Discussion.    "The essential purpose of bail is to secure

the presence of a defendant at trial to ensure that, if the

defendant is guilty, justice will be served."    Querubin v.

Commonwealth, 440 Mass. 108, 113 (2003), and cases cited.      "In

posting bail for the principal, the surety in effect 'guarantees

that the principal will appear and answer.'"    Commonwealth v.

Bautista, 459 Mass. 306, 311 (2011).    To effect this guarantee,

under the recognizance agreement, both the surety and the

defendant are liable, jointly and severally, to the Commonwealth

for the dollar amount specified in the terms of the release if

the defendant fails to appear in court when his presence is

required, i.e., he defaults.    General Laws c. 276, § 71, also

provides the judge the authority to order the funds of the

surety and the principal forfeited when a default enters.      See

Commonwealth v Bautista, supra.11,12



provide, however, that the defendant "will be liable, jointly
and severally if a surety has been required, to the Commonwealth
of Massachusetts for the dollar amount specified in the terms of
release." The defendants accordingly have an interest in the
satisfaction of the terms of the recognizance agreements,
including the return of the bail to the sureties.
     11
          General Laws c. 276, § 71, provides, in relevant part:

     "If a person under recognizance to appear and answer or to
     prosecute an appeal in a criminal case fails to appear
     according to his recognizance, . . . his default shall be
     recorded, his obligation and that of his sureties
     forfeited, and process issued against them or such of them
     as the prosecuting officer directs."
                                                                   7


    If, on the other hand, a defendant appears as required,

G. L. c. 276, § 68, provides that the bail "shall" be returned

to the surety.    Specifically, § 68 states:

    "Bail in criminal cases may be exonerated at any time
    before default upon their recognizance by surrendering
    their principal into court or to the jailer in the
    county where the principal is held to appear, or by
    such voluntary surrender by the principal himself, and
    in either event, in all cases where bank books, money
    or bonds are deposited by the surety, the court shall
    thereupon order the bank books, money or bonds so
    deposited to be returned to the surety or his order,
    and to be reassigned to the person entitled thereto."

The language is plain and unambiguous, and mandates the return

of the bail to the surety when the defendant appears without

default.   See Commonwealth v. Brown, 431 Mass. 772, 775 (2000)

(plain language of statute controls).

    Here, relying on her finding that the bail actually

belonged to the defendants and was not comprised of loans paid

by the sureties, the judge issued an order of forfeiture

directing that those funds be applied to the restitution owed by

the defendants.   The order should not have issued.   The

defendants here undisputedly were in full compliance with the

conditions of bail.    Under the mandatory language of the

statute, the judge was required to order the return of the bail


    12
       Apart from default, forfeiture also may be appropriate in
certain other circumstances not relevant here. See G. L.
c. 94C, § 47 (money furnished for controlled substance or to
facilitate violation of drug laws); G. L. c. 273, § 18 (child
support).
                                                                     8


money to the sureties.    In so doing, the judge was not permitted

to inquire about the sufficiency or nature of the sureties, so

long as the surety deposited an amount equal to that of the bail

required.   See G. L. c. 276, § 57.

     Here, of course, a fraudulent suretyship was suspected.      We

agree that proof of a fraudulent suretyship would provide a

basis for forfeiture and attachment.      In that instance, a motion

by the Commonwealth and an offer of proof, followed by an

evidentiary hearing, would be an appropriate course of action to

make the required findings to support denying the return of bail

to a surety.   In this case, however, the judge looked beyond the

recognizance agreement and made findings of fact without

receiving an offer of proof from the Commonwealth or holding an

evidentiary hearing.     Instead, she relied on her unrefreshed

memory of the trial, an unopposed affidavit that she

discredited, unchallenged financial records that she also

discredited or ignored,13 and the absence of certain affidavits,

in concluding that the defendants engaged in "extremely devious,

callous and nefarious behavior."      While that description is

doubtless true, without concrete evidentiary support, the


     13
       The judge either apparently ignored or discredited
documentation from Citizens Bank showing a wire transfer of
$50,000 to Jade from Lee's sister one day prior to when Jade
posted Lee's bail, and documentation from Merrill Lynch and Bank
of America showing a wire transfer of $50,000 one day prior to
when Peter, IV, posted Peter's bail.
                                                                     9


judge's findings are fatally flawed.   See generally Commonwealth

v. Nattoo, 452 Mass. 826, 828 n.1 (2009), quoting from

Commonwealth v. Haggerty, 400 Mass. 437, 442 (1987) ("Disbelief

of testimony is not the equivalent of proof of facts contrary to

that testimony").   Accordingly, the forfeiture order must be

reversed.14

     The Commonwealth, citing Commonwealth v. Davis, 376 Mass.

777 (1978), nevertheless contends that a judge has the inherent

authority to hold or attach deposited funds in its custody

postconviction and apply them to a court-ordered fine or to

restitution once the purpose of the bail has been fulfilled.

First, the argument requires a threshold finding that the money,

in fact, belongs to the defendant rather than the surety.    As we

have already concluded, that fact was not established here.

Second, in Davis, the Commonwealth conceded that the bail was

erroneously forfeited as the defendant was never in default.

Id. at 789.   Trial counsel there also stipulated that the cash

bail be applied to the court-ordered fines.   Ibid.   No such

concession or stipulation exists here.15


     14
       We decline to reach the question whether bail money, once
determined to belong to a defendant rather than the surety, can
be automatically forfeited and applied to restitution owed by a
defendant absent a defendant's agreement.
     15
       The Commonwealth's argument that the statute does not
address whether or how the posted bail money is to be returned
is equally meritless. Its citation to support the point, to
                                                                  10


     Conclusion.   The order forfeiting the bail posted by Jade

as surety for Lee, and by Peter, IV, as surety for Peter, is

reversed.   The clerk's office shall return the bail to the

sureties.16,17

                                    So ordered.




G. L. c. 276, § 70, concerns a situation wherein "bail are
unable without their fault to surrender their principal." See
Commonwealth v. Bautista, 459 Mass. at 314. That is not the
situation here as no default entered.
     16
       Because we reverse the forfeiture order, we need not
address the defendants' alternative claim seeking a remand for a
full evidentiary hearing. Moreover, any claim that the
defendants have advanced regarding the amount of restitution
ordered is waived, as the defendants did not appeal from the
restitution order.
     17
       We observe that the victims are not without remedies, as
each defendant is jointly and severally liable for the
restitution established and ordered to be paid. Civil actions,
both pending and concluded, also have provided some degree of
restitution to the victims.
