Massachusetts Appeals Court Rules Defendant Cannot be Convicted of Misleading a Cop When the Criminal Investigation is a Sham

The Massachusetts Appeals Court today reversed the conviction of a man who was found guilty of misleading a police officer because the “crime” the officer was investigating was a ruse to obtain incriminating evidence from the defendant.  The name of the case is Commonwealth v. Occhiuto

In 2009 the defendant was the target of a drug investigation in Lynn by state and federal law enforcement authorities.  The police decided to use a confidential informant named Olive to buy large amounts of crack cocaine and heroin from the defendant.  Olive was given $4,000 by the police to purchase the drugs.  Olive called the defendant and made plans to meet up with him.  Olive drove to the meeting place in an undercover FBI car that was equipped with recording devices and a hidden camera.

When Olive met the defendant, he was unexpectedly accompanied by his friend who had previously dated Olive.  The men entered Olive’s car and she gave the $4,000 to the defendant.  The men then left with the defendant saying he would be right back.  However, when they were out of sight of Olive, the men exchanged a high five and got into a car on a nearby street.  Police officers were conducting surveillance and believed the defendant was going to steal the money.  The officers wanted to get the money back but did not want the defendant to realize he was the subject of the drug investigation.  Therefore, a state trooper pulled over the defendant’s car and told him he was under investigation for a road rage incident.  During the stop, the trooper patfrisked the defendant and his friend and found the $4,000.  The defendant said he was using his part of the money for rent and his friend said he was using his part of the money to buy a car.  Much to the chagrin of the defendant, the trooper took the $4,000 for “civil forfeiture proceedings” and said the defendant could file a complaint with the barracks if he wanted.

Foolishly, that’s exactly what the defendant did.  He and his friend went to the barracks and told a lieutenant they had been shaken down by a rogue state trooper who had stolen their money.  The lieutenant, who was clued into the situation by the undercover officers, told the defendant he was beginning an investigation into the propriety of the trooper’s actions in taking the defendant’s money.  The defendant agreed to be interviewed by the lieutenant and and FBI agent.  The defendant told the officers that the money, which he had stolen from Olive, was from his “trust” and the proceeds of working under the table.  The defendant was thereafter charged with, and convicted of, violating the witness intimidation statute, which criminalizes misleading a police officer who is conducting a criminal investigation.

The issue on appeal was whether the defendant could be convicted of impeding a criminal investigation when the “investigation” and the “crime” being investigated were both shams.  Nobody was investigating the trooper who took the money from the defendant.  The purpose of the police interviewing the defendant was to obtain inculpatory statements regarding his drug dealing activities.  The Appeals Court concluded no criminal investigation existed for the defendant to mislead.  The Court said a criminal investigation is any investigation or proceeding that may result in criminal-type sanctions.  Because there was no real investigation here, the defendant could not be convicted of misleading a police officer.

The interesting facts of this case illustrate a familiar point – nobody should voluntarily submit to an interview with the police before consulting a criminal defense attorney.