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14-P-1955                                                   Appeals Court

                     COMMONWEALTH   vs.   LEONARD DEGNAN.


                               No. 14-P-1955.

            Essex.       December 1, 2016. - March 30, 2017.

              Present:     Cypher, Maldonado, & Blake, JJ.


Municipal Corporations, Officers and employees. Solicitation to
     Commit Felony. Bribery. Conspiracy. Fraud. Evidence,
     Bribe, Conspiracy, Fraud. Practice, Criminal, Duplicative
     convictions, Argument by prosecutor.



     Indictments found and returned in the Superior Court
Department on September 11, 2012.

    The cases were tried before Douglas H. Wilkins, J.


     David A.F. Lewis for the defendant.
     Philip A. Mallard, Assistant District Attorney, for the
Commonwealth.


    BLAKE, J.        Following the election of William Lantigua as

mayor of Lawrence (city) in 2009, the defendant, Leonard Degnan,

served as his chief of staff.        During the defendant's tenure in

that position, he secured the donation of a trash truck from the

city's waste services provider to a city in the Dominican
                                                                   2


Republic.    The donation request took place during a meeting in

which the defendant told the provider that the mayor's office

"had the ability to rip up" the provider's contract with the

city.    Following the donation, the city took no action to void

or modify the contract.

     In 2012, a grand jury returned several indictments charging

the defendant with bribery and other crimes related to the trash

truck donation.    A 2014 jury trial resulted in convictions of

soliciting a bribe, soliciting a gratuity, conspiracy to solicit

a bribe, and unlawful use of an official position with

fraudulent intent.1   On appeal, the defendant claims that the

Commonwealth presented insufficient evidence to support the

convictions, and that errors in the prosecutor's closing

argument created a substantial risk of a miscarriage of justice.

With the exception of the conviction of soliciting a gratuity

under G. L. c. 268A, § 3(b), which we vacate as duplicative of

the bribery conviction, we affirm the defendant's convictions.

     Background.    In the light most favorable to the

Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677

(1979), the jury could have found the following facts.

     1.   City's waste removal contract.   Allied Waste (Allied)

is a waste hauling company that holds multiple municipal


     1
       The jury acquitted the defendant of one count of
extortion.
                                                                    3


contracts, private contracts, and commercial accounts.     In 2009,

Stanley Walczak was a general manager at Allied responsible for

the negotiation of municipal contracts with the city, among

other duties.   In September, 2009, prior to Lantigua's election,

Walczak and the city renegotiated a new $6.4 million, three-year

contract to commence on October 1, 2009, with two additional

option years.   The new contract was significantly different from

the prior, as it converted the city to an automated collection

system with limited barrels per household.   To fulfil the

contract, Allied was required to purchase new barrels and new

side-loading trucks at a cost of $2 million to $3 million.

Despite the significant financial investment required, the

parties expected that the reduced manpower needed, as well as

the limited trash collection per household, would result in

savings over the long term.2   As an additional cost-saving

measure, the new contract also eliminated bulk item pickup.

During the early implementation of the new contract, some of the

city's residents protested the reduced services.

     2.   Connection to the Dominican Republic.    In November,

2009, the city's voters elected Lantigua, who was the first

mayor originally from the Dominican Republic.     More than one-

     2
       By limiting the collection barrels per household, Allied
and the city hoped to decrease the trash and increase the
recycling collected, which would, in turn, reduce Allied's trash
disposal fees and increase its revenue from the sale of the
recycled material.
                                                                     4


third of the city's eligible voters are from the Dominican

Republic, with a significant number of those from the Dominican

city of Tenares.    Shortly after the election, Lantigua and the

defendant met with the mayor of Tenares while they were

vacationing in the Dominican Republic.

    3.    Solicitation of the donation.   After his return from

the Dominican Republic, the defendant commenced work in the new

administration.    He directed the everyday operations of the

city, acted as its "finance director," and oversaw the city's

contracts, including its contract with Allied, all in close

connection with the mayor.    Vendors, including Walczak, knew

that the "mayor's office ha[d] a lot of clout" and "a lot of

say" in the renewal and awarding of contracts and, for that

reason, they knew that it was in their interest to be responsive

to the mayor's office.

    In December, 2009, Frank McCann, the head of the city's

department of public works, telephoned Walczak to set up a

meeting with Walczak and the defendant.    At that point, Walczak

had known McCann for about eleven years and had worked with him

as the city's contact person on its trash contracts.    During the

call, McCann informed Walczak that, at the meeting, the

defendant was going to ask that Allied donate one or two trash

trucks.
                                                                    5


     The meeting took place later that month at the defendant's

insurance office.3   According to Walczak, it proceeded as

follows.   From behind his desk, with McCann and Walczak seated

in front of him, the defendant immediately launched into a

hostile attack about the new trash contract.   He stated that

both he and the mayor were not happy with the contract, and that

he "could not believe" that the previous administration had

signed such a "way overpriced" contract.   Continuing in a

confrontational tone, the defendant emphasized that the cost of

the contract had been significantly increased from the previous

one, but provided fewer services, and that he "didn't believe it

would work in the city of Lawrence."   The defendant told Walczak

that "he was the right hand of the mayor" and "could find a lot

of other companies to come in to do it a lot cheaper."   Finally,

the defendant said that he and the mayor "had the ability to rip

up the contract, not honor it."

     About fifteen minutes into the meeting, while Walczak was

attempting to explain how the contract had come into existence,

the defendant cut him off and told him that the defendant and

the mayor were "going to give [Allied] a chance . . . even

though [the city] could terminate the contract, they were going

to give [Allied] the opportunity to work with [them]."   The


     3
       The defendant owned an insurance business and had worked
there prior to becoming chief of staff.
                                                                   6


tenor of the meeting then immediately changed.    The defendant

told Walczak that "[he] and the mayor would be very happy" and

"it would go a long way if [Allied] could donate . . . a couple

of trucks" to the city's sister city of Tenares, because it is

very poor.

     Walczak never before had been asked for such a donation.

Feeling threatened, he believed that if he could not produce a

trash truck, the mayor and the defendant would void the

contract.    Likewise, he thought that if he went to the police

about the defendant's threat, the contract would be voided.

Thinking of his employees, the value of the relatively new

contract, the precarious financial position of the city,4 and the

significant investment Allied had already made, Walczak decided

to "see if there was . . . a way to make this all work."      He

told the defendant that he would "run the request up the

flagpole" and "get back to them."    As he left the office,

Walczak knew the situation was not good, but he did not want "to

get into a battle with a municipality[,] [a battle] [y]ou never

win."




     4
       Walczak was concerned about the city's going into
bankruptcy and receivership. When Lantigua took office, the
city had an approximate $25 million budget deficit.
                                                                       7


     McCann confirmed Walczak's description of the meeting.5

According to McCann, the defendant initially impressed upon

Walczak how important and tough he could be so that he and the

mayor would get what they wanted -- the donation of a trash

truck.    McCann also noted that "[t]here was no please in [the

donation request]," and the defendant framed it in such a way as

to let Walczak figure out the meaning of the request rather than

stating it directly.6

     4.   Resulting donation.   After the meeting, Walczak

telephoned his maintenance manager, who reported that Allied had

a trash truck, which was going to be auctioned off for an amount

likely between $1,500 and $2,500, available for donation.

Walczak then sought approval for the donation from his superiors

in an electronic mail message dated December 16, 2009.       Walczak

did not disclose that the defendant had threatened him for a

trash truck donation, but rather cast his request solely as one

to secure the good will of the new administration.    In doing so,


     5
       McCann's testimony at trial was offered by way of his
prior grand jury testimony, which was read into the record. In
earlier portions of his grand jury testimony, McCann denied that
the defendant took part in the conversation with Walczak in
which the request for a trash truck was made. McCann later
changed his testimony and confirmed Walczak's version of events.
     6
       The defendant did not testify at trial, but his grand jury
testimony was read into the record. In that testimony, he
acknowledged that the mayor had told him that he wanted a trash
truck and that "[he (the defendant)] may have" discussed the
donation with Walczak and McCann in a meeting.
                                                                   8


he thought that he "could take care of it, get it done and over

with by . . . donating an old truck."   Walczak obtained the

requisite approval within a day.

     Over the course of the next several weeks, Allied prepared

the truck for donation at its own expense, including giving the

truck a new paint job and new tires at the mayor's request.

Thereafter, Lantigua, representatives of Allied, and the mayor

of Tenares all posed for a photograph in front of a truck

similar to the one being donated.7   Another Lawrence businessman,

Francis Coady, then agreed to tow the truck to a port in New

Jersey at no charge for shipment to Tenares.8   After the truck

successfully arrived in Tenares, the city made no attempt to

cancel or modify Allied's contract, nor did it complain about

its cost.   Lantigua also supported Allied when issues arose in

the city council regarding trash collection.

     Discussion.   1.   Sufficiency of the evidence of bribery.

On the facts present here, a bribery conviction in violation of

G. L. c. 268A, § 2(b), requires proof that a "municipal employee

. . . or a person selected to be such an employee . . . directly

or indirectly . . . corruptly . . . solicit[ed] . . . anything


     7
       Preparations were still being made to the donated truck
when the picture was taken.
     8
       Coady testified that the defendant called him about towing
the truck, and that he essentially offered to do the job at no
cost if the defendant could wait about a month.
                                                                   9


of value for . . . any other person or entity, in return for

. . . being influenced in his performance of any official act or

any act within his official responsibility."9

     Here, the facts establish that, at all relevant times, the

defendant was a municipal employee or a person selected to be

such an employee, who solicited a trash truck (something of

value) for either the mayor (any other person) or the city of

Tenares (an entity).   At issue on appeal is the remaining

portion of the statute, which requires proof of the defendant's

corrupt intent and limits the influenced action to the sphere of

the defendant's "official" duties.   In seeking guidance on the

meaning of these parts of the statute, because G. L. c. 268A,

§ 2, tracks a cognate Federal statute, we may look to the

relevant Federal case law, in addition to our own.   See Scaccia

v. State Ethics Commn., 431 Mass. 351, 354-355 (2000);




     9
       General Laws c. 268A, § 2(b), inserted by St. 1962,
c. 779, § 1, provides: "Whoever, being a . . . municipal
employee . . . or a person selected to be such an employee . . .
directly or indirectly, corruptly asks, demands, exacts,
solicits, seeks, accepts, receives or agrees to receive anything
of value for himself or for any other person or entity, in
return for (1) being influenced in his performance of any
official act or any act within his official responsibility . . .
shall be punished."

     While the statute includes the terms "asks, demands, exacts
. . . [and] seeks," in addition to "solicits," given the
evidence here, and for the sake of clarity, we shall limit
ourselves to that term.
                                                                    10


Commonwealth v. Dutney, 4 Mass. App. Ct. 363, 376-377 & n.16

(1976).

     In Scaccia, the Supreme Judicial Court described bribery

under G. L. c. 268A, § 2, as a "quid pro quo" or "an exchange,

involving a two-way nexus."     Scaccia, supra at 356.   See United

States v. Sun-Diamond Growers of Cal., 526 U.S. 398, 404-405

(1999).10   The specific intent to enter into an unlawful quid pro

quo is, essentially, the corrupt intent required by the statute.

United States v. Alfisi, 308 F.3d 144, 149 (2d Cir. 2002) ("The

'corrupt' intent necessary to a bribery conviction is in the

nature of a quid pro quo requirement . . .").     In other words,

the statute is violated when an official solicits a bribe,

knowing that it will be given for the purpose of inducing him to

violate his official duty.    See United States v. Valle, 538 F.3d

341, 345-346 (5th Cir. 2008).    Whether, upon receipt of the

bribe, the defendant actually is influenced in the performance

of his official duties is not required to prove criminality.

See Evans v. United States, 504 U.S. 255, 268 (1992) ("[The]

fulfillment of the quid pro quo is not an element of the

offense"); Valle, supra at 346 ("[T]he statute [is] violated

when an official [takes] the bribe, knowing that it was given


     10
       By contrast, because a conviction of soliciting a
gratuity under G. L. c. 268A, § 3, requires no proof of a
corrupt intent on the part of the defendant, it has been
described as a "one-way nexus." Scaccia, supra at 356.
                                                                   11


for the purpose of inducing him to violate his official duty,

whether or not he actually intended to follow through with the

violation").   In determining whether the defendant agreed to be

influenced in the quid pro quo exchange, "[t]he jury may

consider a broad range of pertinent evidence, including the

nature of the transaction."    McDonnell v. United States, 136

S. Ct. 2355, 2371 (2016).

     Here, the evidence permitted the jury to infer the

defendant's corrupt intent.    At the meeting with Walczak and

McCann, the defendant made abundantly clear that the purpose of

the donation was to keep the trash contract intact.    Even though

the defendant did not spell out the quid pro quo directly, his

approach was not subtle.    By both Walczak's and McCann's

accounts, the defendant made clear, through his threatening and

hostile manner, the repercussions of failing to provide the

requested donation.   From this evidence, the jury could infer

that the defendant solicited the trash truck in exchange for not

voiding the contract -- an unlawful quid pro quo.11

     The other portion of the statute at issue limits the

influence exerted to an "official act or any act within [the

defendant's] official responsibility."    G. L. c. 268A,


     11
       The defendant's challenge of Walczak's authority to
donate the truck is baseless and irrelevant, as it is the
defendant's -- not Walczak's -- intent, conduct, and authority
that are at issue.
                                                                 12


§ 2(b)(1).   Thus, the bribe must be in exchange for influence

only within the official realm at the defendant's disposal.

General Laws c. 268A, which concerns the conduct of public

officials and employees, defines an "official act" as "any

decision or action in a particular matter or in the enactment of

legislation," G. L. c. 268A, § 1(h), inserted by St. 1962,

c. 779, § 1; an "official responsibility" is defined as "the

direct administrative or operating authority, whether

intermediate or final, and either exercisable alone or with

others, and whether personal or through subordinates, to

approve, disapprove or otherwise direct agency action," G. L.

c. 268A, § 1(i), inserted by St. 1962, c. 779, § 1.

    The decision whether to terminate a large municipal

contract, such as the trash contract, is indisputably an

official act.   As an intermediate official, the defendant did

not hold the authority, himself, to terminate the contract.

Nevertheless, the Commonwealth presented sufficient evidence

that the contract was within the defendant's official

responsibility.   The defendant testified that his duties

included working with vendors and advising the mayor on large

contracts, such as the trash contract.   Thus, at the very least,

he had intermediate operating authority with respect to the

contract, exercisable with another (the mayor), to direct agency

action.   Put another way, the defendant had the requisite
                                                                   13


authority to be able to make good on his agreement to influence

the mayor's treatment of the trash contract.

     On appeal, the defendant nevertheless argues that the

Commonwealth did not meet its burden because it presented no

evidence that the contract, which was binding and enforceable,

could be terminated.   In other words, the defendant argues that

the contract was not subject to official action or influence.

The contract, itself, however, belies that argument.     It was

admitted in evidence and includes a convenience clause

permitting the city to terminate the contract without providing

a reason.12   This evidence, in combination with testimony that

the defendant intended to void the contract if the mayor did not

receive the trash truck donation, establishes that the contract,

itself, was not a bar to the defendant's commission of bribery.13




     12
       The convenience clause provides: "The City may terminate
this Agreement at any time by giving written notice to the
Contractor of such termination and specifying the effective date
of such termination."
     13
       Likewise unavailing is the defendant's claim that city
could not legally invoke the convenience clause as retribution
for the failure to pay a bribe. Regardless of the legality, or
the outcome of any later legal battle, the immediate effect of
invoking the clause would be termination of the Allied contract,
as contemplated by the defendant's bribery scheme.
                                                                    14


     The judge properly denied the defendant's motion for a

required finding of not guilty on the G. L. c. 268A, § 2(b),

bribery conviction.14

     2.   Duplicative convictions.   We vacate as duplicative the

defendant's conviction of soliciting a gratuity under G. L.

c. 268A, § 3(b).   The elements of that statute are essentially a

subset of those of G. L. c. 268A, § 2(b), missing only the

element of corrupt intent.15   See Commonwealth v. Vazquez, 69

Mass. App. Ct. 622, 627 (2007) ("For a violation of G. L.

c. 268A, § 3[b], it is enough that the defendant requested or

received something of substantial value for or because of an

official act or an act within his official responsibility").

For that reason, as this court and the Supreme Judicial Court

have recognized, one is a lesser included offense of the other.

     14
       The defendant argues that his telephone call to Coady did
not provide evidence to support conviction on any of the charged
offenses. He does not, however, challenge its admission on the
basis of relevance. Regardless, we observe that the telephone
call was not the central piece of the Commonwealth's evidence,
and that the jury were entitled to assign to it the weight they
deemed appropriate.
     15
       General Laws c. 268A, § 3(b), as amended by St. 2009,
c. 28, § 62, provides: "Whoever knowingly, being a present
. . . municipal employee . . . or person selected to be such an
employee . . . , otherwise than as provided by law for the
proper discharge of official duty, directly or indirectly, asks,
demands, exacts, solicits, seeks, accepts, receives or agrees to
receive anything of substantial value: (i) for himself for or
because of any official act or act within his official
responsibility performed or to be performed by him; or (ii) to
influence, or attempt to influence, him in an official act taken
. . . shall be punished."
                                                                      15


See Scaccia, 431 Mass. at 356 ("A [G. L. c. 268A, § 3,] gratuity

violation is, essentially, a lesser included offense of [G. L.

c. 268A, § 2,] bribery"); Dutney, 4 Mass. App. Ct. at 376-377

(same).     See generally Commonwealth v. Porro, 458 Mass. 526, 531

(2010) ("[A] lesser included offense is one whose elements are a

subset of the elements of the [greater] charged offense").

Where a defendant is convicted of both the greater and lesser

offenses, the conviction of the lesser offense must be dismissed

as duplicative.    See Commonwealth v. Vick, 454 Mass. 418, 431-

432 (2009); Commonwealth v. Guaman, 90 Mass. App. Ct. 36, 47

(2016).16

     3.     Remaining claims.   The defendant's remaining claims

require little discussion.

     a.     Sufficiency of the evidence of conspiracy to solicit a

bribe.    Because the Commonwealth presented sufficient

circumstantial evidence of an agreement between the defendant

and the mayor to commit the crime of bribery, the Commonwealth

met its burden to prove the crime of conspiracy.      See generally

Commonwealth v. Cerveny, 387 Mass. 280, 288 (1982); Commonwealth

v. Lonardo, 74 Mass. App. Ct. 566, 569 (2009).



     16
       We need not remand for resentencing because the sentence
imposed on the lesser included offense was concurrent with the
sentences imposed for the convictions of conspiracy and unlawful
use of an official position. See, e.g., Commonwealth v.
Johnson, 461 Mass. 44, 54 n.12 (2011).
                                                                    16


    b.   Closing argument.   None of the five unobjected-to

statements the defendant challenges was error, much less the

cause of a substantial risk of a miscarriage of justice.      See

Commonwealth v. Smith, 460 Mass. 385, 398 (2011).    Rather, the

statements were confined to the evidence, including the

reasonable inferences to be drawn therefrom.   See Commonwealth

v. Kater, 432 Mass. 404, 422 & n.14 (2000).    More specifically,

the evidence supported the prosecutor's characterization of the

defendant as the "captain" of the Lantigua "team."    His remark

that this case was not about a trash truck, but about the "cloud

of corruption" that "hovers" or "hangs" over the truck was a

fair summary of the case.    In responding to the defense's

suggestion that the jury consider why the defendant was the only

one on trial, the prosecutor's statement that it "[was] not

their time" was a fair response.   Nor did the prosecutor

misstate evidence of the defendant's telephone call to Coady.

Finally, the evidence supported the prosecutor's suggested

inference, based on the timing of events, that the conspiracy

may have formed on the vacation to the Dominican Republic that

the defendant took with Lantigua immediately after he won the

election and had become friendly with the mayor of Tenares.

    Conclusion.   The judgment of conviction of solicitation of

a gratuity, in violation of G. L. c. 268A, § 3(b), is vacated,
                                                                17


the verdict is set aside, and that indictment is dismissed.   The

remaining convictions are affirmed.

                                      So ordered.
