Commonwealth v. Hyde

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12-P-867 Appeals Court

COMMONWEALTH vs. JAMES C. HYDE (and seven companion cases1).

No. 12-P-867.

Essex. June 12, 2015. - December 21, 2015.

Present: Cohen, Green, & Trainor, JJ.

Insurance, Motor vehicle insurance, Fraud and concealment,
Defrauding insurer. Motor Vehicle, Insurance. Fraud.
Larceny. Practice, Criminal, Instructions to jury, Grand
jury proceedings, Indictment. Grand Jury. Evidence,
Intent, Inference, Grand jury proceedings, Relevancy and
materiality, Prior misconduct, Testimony before grand jury,
Credibility of witness. Probable Cause. Witness,
Credibility.

Indictments found and returned in the Superior Court
Department on April 4, 2008.

The cases were tried before Howard J. Whitehead, J.

Edward Foye (David Meier with him) for James C. Hyde.
Sarah E. Dolven for Omar Castillo.
Argie K. Shapiro, Assistant Attorney General (William R.
Freeman, Special Assistant Attorney General, with her) for the
Commonwealth.

1
Five against Hyde and two against Omar Castillo.
2

COHEN, J. Following a multi-year inquiry by investigators

from the Massachusetts Insurance Fraud Bureau and the city of

Lawrence police department, a grand jury indicted the

defendants, James C. Hyde, Michael H. Kaplan, and Omar Castillo,

for crimes arising from the submission of fraudulent automobile

insurance claims.2 The defendants later were tried together

before a Superior Court jury. Hyde, an attorney at the law firm

of Berger & Hyde, P.C., was convicted of two counts each of

motor vehicle insurance fraud (see G. L. c. 266, § 111B),

larceny over $250 (see G. L. c. 266, § 30), and attempted

larceny over $250 (see G. L. c. 274, § 6). Kaplan, a

chiropractor and owner of the Kaplan Chiropractic clinic, was

convicted of three counts of motor vehicle insurance fraud, and

two counts each of larceny over $250 and attempted larceny.

Castillo, an employee of Kaplan Chiropractic, was convicted of

one count each of motor vehicle insurance fraud and larceny over

$250. Before us are the appeals of Hyde and Castillo.3

2
Other individuals also were indicted on fraud charges,
including Leo Lopez and Christopher Ortega, who signed
cooperation agreements and testified against the defendants.
3
Kaplan noticed an appeal, which was stayed while he
pursued a motion for a new trial. After an evidentiary hearing
in the trial court, the motion for new trial was denied.
Subsequently, Kaplan's motion to dismiss his appeal was allowed,
with prejudice.
3

Hyde's convictions resulted from insurance claims submitted

on behalf of clients purporting to have been injured in two

staged automobile accidents -- one alleged to have occurred on

October 1, 2002, and the other alleged to have occurred on

December 20, 2002. Hyde's primary contention on appeal is that

the Commonwealth failed to establish at both the grand jury and

petit jury stages of the case that he knew that these particular

accidents were staged. On this ground, he maintains that both

his pretrial motion to dismiss the indictments and his motion

for required findings of not guilty at trial should have been

allowed. In addition, Hyde argues that the indictments should

have been dismissed for the additional reason that the integrity

of the grand jury proceedings was impaired, and that he is

entitled to a new trial as a result of the erroneous admission

of prior bad act evidence.

Castillo's convictions resulted from his role in helping to

stage the December 20 accident. Castillo argues that there was

insufficient evidence that he knew that statements submitted to

insurance companies with regard to that accident were false,

and, therefore, his motion for required findings of not guilty

should have been allowed. Castillo also argues that he is

entitled to a new trial as a result of the erroneous admission

of checks written to him by Berger & Hyde, P.C. For the

following reasons, we affirm both defendants' convictions.
4

Background. The jury could have found the following facts.

In 2000, Leo Lopez began to work as an assistant and van driver

at Kaplan Chiropractic. Shortly after starting the job, Lopez

brought his mother to Kaplan Chiropractic for treatment of a

work-related shoulder injury. When Kaplan gave him $100 in cash

for bringing his mother in, Lopez learned that it was Kaplan's

policy to pay his employees cash bonuses when they referred new

patients to the clinic. Kaplan later told Lopez that he could

make extra money by setting up motor vehicle accidents. Kaplan

explained how to stage an accident by obtaining two cars (one to

play the "at fault" role, and the other to play the "not at

fault" role), recruiting a driver and passengers for each car,

crashing the cars together, preparing accident reports, and

bringing the accident participants first to a chiropractor and

then to an attorney.

On December 5, 2000, Lopez staged his first accident. He

drove his own car, which he was eager to replace, and arranged

for a woman to hit it with her minivan. The next day, he went

to Kaplan for treatment. At Kaplan's recommendation, Lopez

promptly went to see Hyde at his law firm. At that meeting,

Hyde explained that Lopez would need to accumulate $2,000 in
5

medical bills to have a case,4 and gave him an envelope

containing a check for $200 for bringing the matter to the firm.

Hyde also promised to "take care of [him]" if he referred more

clients.

To build up his medical expenses, Lopez went to a few

actual physical therapy sessions at Kaplan Chiropractic, and

then pretended to receive further treatment. Lopez also went

back to Hyde's office to fill out a personal injury protection

form to obtain no-fault benefits for alleged lost wages,5 even

though he had not stopped working. Hyde eventually settled

Lopez's case for $5,300, from which Hyde took $1,325.

Lopez testified in some detail about the period between

December, 2000, through September, 2002. At first, he staged

"live" two-car collisions, where police and other emergency

responders would be called to the scene. However, by mid-2001,

he had transitioned to staging "paper" accidents. In those

instances, he would obtain and damage two cars, recruit people

willing to pose as the occupants, and fill out paperwork as if a

real accident had occurred. The day after each purported

accident, the persons pretending to be the injured occupants

4
Hyde was referring to the so-called tort threshold that is
a feature of the Massachusetts no-fault insurance scheme. See
G. L. c. 231, § 6D, as amended by St. 1988, c. 273, § 55.
5
See G. L. c. 90, §§ 34A, 34M.
6

would be taken to one of two chiropractors and one of two

lawyers, based on whether they were the designated occupants of

the "at fault" vehicle or the "not at fault" vehicle. The

chiropractor was either Kaplan or another chiropractor who

practiced at Haverhill Family Chiropractic, and the lawyer was

either Hyde or another lawyer who practiced at a different firm.6

Castillo, another van driver for Kaplan, also was engaged

in the scheme. He staged accidents, brought the participants to

Kaplan for treatment, and obtained payments from Kaplan in

return. Castillo, too, was introduced to Hyde, and received

referral fees from Hyde when he brought Hyde new clients.

Lopez's reputation grew to the point where members of the

community would approach him to volunteer their participation.

He enlisted the help of a friend, Christopher Ortega, and paid

him a share of the referral fees. The two would recruit

participants, coach them on their roles in the fictitious

accidents, and tell them how to respond to medical, legal, and

insurance professionals. From December, 2000, through

September, 2002, Lopez referred participants in more than twenty

staged accidents to Kaplan Chiropractic or Haverhill Family

Chiropractic, and to Hyde or the other lawyer involved in these

6
The other chiropractor and lawyer also were indicted, but
those indictments ultimately were dismissed.
7

ruses. Both Kaplan and Hyde would pay Lopez for each individual

whom he referred to their respective practices.

As Lopez became friendly with Hyde, the two had a number of

private conversations where Hyde made specific suggestions about

how best to stage the accidents. For example, Hyde told Lopez

that there were three insurance companies to be avoided, because

they were "really going hard investigating the accidents." On

four or five occasions, Hyde told Lopez to keep the number of

people in a vehicle to no more than three. Ortega testified to

similar conversations with Hyde in which Hyde explained that too

many passengers "would bring up red flags" with the insurance

companies. On the other hand, Lopez also understood from

discussions with Kaplan, that if there were too few passengers,

there would not be enough money. Sometimes Hyde would tell

Lopez that he should "coach" a nervous client "better," in case

the insurance company sent out an investigator to ask the client

questions. Hyde explained that if the client gave a statement

that was inconsistent with the accident report, it would raise

suspicions, and no one would get paid.

Lopez testified that on more than one occasion in the

period from December, 2000, through September, 2002, he told

Hyde that the clients he was referring were from staged

accidents. However, Lopez and Ortega also testified that

sometimes the accident victims they referred were legitimate.
8

Ortega estimated that "20 percent [were] real and the rest

[were] fake."

The October 1, 2002, and December 20, 2002, staged

accidents were both paper accidents. The premise of the October

1 accident was that a Jaguar driven by Antonia Almanzer and

carrying two passengers, was struck in the rear by a Ford

Explorer driven by Kelly Birchall and carrying four passengers.

Birchall was the godmother of Lopez's son, and had agreed "to

take the fall." The accident was orchestrated by Lopez and

Ortega, who damaged the Explorer by driving it into a wall. The

Explorer actually was owned by one of the ostensible passengers,

who was paid $500 for its use as the "at fault" vehicle.

Lopez filled out the operator's report for the purported

driver of the Explorer, supplying information about the two

vehicles, the names and personal data of the occupants, and a

description of the accident, including the time, date, and

location of the collision. Lopez, along with Ortega, also

brought the Explorer passengers to Haverhill Chiropractic and

then to Hyde's law firm. At the law firm, the passengers met as

a group with Miguel Nieves, Hyde's associate. They never met

Hyde, personally. Medical bills were generated, and Hyde

submitted claims on behalf of the passengers. As a result, the

insurer paid more than $250 in medical payments to Haverhill

Chiropractic on behalf of one or more claimants. By check dated
9

October 1, 2002, Lopez received a check for $1,000 from Hyde for

having referred these clients to him.

Accompanied by Nieves, the clients later were examined

under oath by the insurer. Subsequently, on August 28, 2003,

the insurer denied the claims in a letter to Hyde stating that

its investigation revealed that the "accident was not of a

direct or accidental nature." The letter explained that the

examinations under oath "yielded vague and inconsistent

testimony, especially in regards to what happened before and

after the loss"; there were no police, ambulance, or fire

department personnel called to the scene; there were no

witnesses; and accident reconstruction had determined that the

damage done to the vehicles "[did] not support a mutual contact

exchange between the vehicles allegedly involved." Upon

receiving the denial letter, Hyde wrote to his clients informing

them that their claims had been rejected and that he would not

continue to represent them.

The December 20, 2002, accident came about when Castillo

approached Lopez and said that a friend of his, Eddy Ramirez,

wanted his Mazda MPV minivan totaled. Lopez then asked Ortega

to find a second vehicle to play the "at fault" role, so that

they could create another paper accident. The premise of the

December 20 accident was that the MPV, driven by Ramirez and

transporting three passengers, was struck on the side by a Mazda
10

Protege driven by Jose Marti, and carrying three passengers.

Ramirez, having been given the facts of the accident by

Castillo, completed an operator's report and submitted it to his

insurer. At Castillo's direction, Ramirez and his three

passengers went to Kaplan for treatment; Castillo also

accompanied the group to Hyde's law firm. Lopez remembered

going with Castillo to this meeting at Hyde's office, and

informing Hyde in person that he and Castillo were both involved

and that they would be splitting the referral fee.

At the law firm, Ramirez and his passengers dealt

exclusively with Nieves and never met Hyde. Hyde submitted

claims for the clients' medical bills, and the insurer made

payments in excess of $250. Eventually, however, on November

21, 2003, the insurer denied the claims stemming from the

December 20 accident, stating that its investigation had shown

that "the loss did not occur as alleged by [Hyde's] clients."

The insurer explained that the "claimants could not provide

consistent and credible testimony regarding the events

surrounding the loss, and . . . the two vehicles allegedly

involved did not collide as described." Hyde wrote to the

clients informing them of the denial, and discontinued

representing them.

Discussion. 1. Hyde's arguments. a. Sufficiency of the

evidence at trial. Each of the crimes of which Hyde was
11

convicted requires proof that he knowingly made false statements

when he submitted the claims. See Commonwealth v. Charles, 428

Mass. 672, 683 n.8 (1999); Commonwealth v. Jerome, 56 Mass. App.

Ct. 726, 732 (2002).7 Hyde's argument is that even if the

Commonwealth adduced sufficient evidence through Lopez and

Ortega that Hyde knew generally about the scheme, such proof did

not give rise to a reasonable inference that he knew that the

October 1 and December 20 accidents were staged, particularly in

light of the evidence that Lopez and Ortega also sometimes

referred legitimate accidents to him.

We consider Hyde's argument under familiar standards.

Evidence is sufficient to reach the jury, and a motion for a

required finding of not guilty is properly denied, where the

7
A conviction of "[m]otor vehicle insurance fraud, G. L. c.
266, § 111B, requires that (1) the defendant, in connection with
a claim under a motor vehicle insurance policy issued by an
insurer, (2) with the intent to injure, defraud, or deceive such
insurer, (3) did knowingly present to it, or aid or abet in or
procure the presentation to it, (4) a notice, statement, or
proof of loss, (5) knowing that such notice, statement, or proof
of loss contained a false or fraudulent statement or
representation, (6) of any fact or thing material to such claim.
Larceny by false pretenses, G. L. c. 266, § 30 [the theory of
larceny presented to the jury in this case], requires that (1)
the defendant knowingly make a false statement, (2) intending
the person to whom it was made to rely on its truth, (3) the
person to whom it was made relies on the false statement, and
(4) based on such reliance, the person parts with personal
property." Commonwealth v. Charles, 428 Mass. at 683 n.8. The
third charge, attempted larceny by false pretenses, "require[s]
a specific intent to commit the underlying offense, an overt act
towards that commission, and a failure to complete the crime."
Commonwealth v. Bell, 83 Mass. App. Ct. 82, 85 (2013).
12

evidence, viewed in the light most favorable to the Commonwealth

and drawing all inferences in favor of the Commonwealth, would

permit a rational jury to find each essential element of the

crime beyond a reasonable doubt. Commonwealth v. Latimore, 378

Mass. 671, 676-677 (1979). "A person's knowledge or intent is a

matter of fact, which is often not susceptible of proof by

direct evidence, so resort is frequently made to proof by

inference from all the facts and circumstances developed at the

trial." Commonwealth v. Casale, 381 Mass. 167, 173 (1980). See

Commonwealth v. Jerome, 56 Mass. App. Ct. at 732. "To survive a

motion for a required finding, it is not essential that the

inferences drawn are necessary inferences. It is enough that

from the evidence presented a jury could, within reason and

without speculation, draw them." Commonwealth v. Peck, 86 Mass.

App. Ct. 34, 41 (2014), quoting from Commonwealth v. Gonzalez,

47 Mass. App. Ct. 255, 257 (1999). See Corson v. Commonwealth,

428 Mass. 193, 197 (1998).

Here, the testimony of Lopez and Ortega about their

conversations with Hyde established that Hyde knew that they

routinely brought him clients whose accidents were staged.

While neither Lopez nor Ortega testified that he specifically

informed Hyde that the October 1 and December 20 accidents were

fictitious, the jury nevertheless reasonably could infer from
13

the circumstances surrounding these accidents that Hyde knew

they were staged.

Particularly telling was the number of clients brought to

Hyde after each of these accidents. Lopez had testified to his

understanding that if there were too few occupants, the accident

would not generate enough money for all concerned; he also had a

personal incentive to stage accidents involving large numbers of

occupants, because he received fees for each individual he

referred. Indeed, the jury could infer that it was because of

this incentive that, as Lopez testified, Hyde had found it

necessary to discuss with him some four to five times the need

to keep the number of people in the accident vehicles to no more

than three per vehicle, so as not to raise "red flags" with the

insurance companies.

Thus, when four of five occupants of the Ford Explorer

were brought to his office after the October 1 accident, and all

four occupants of the Mazda MPV were brought to his office after

the December 20 accident, Hyde was put on notice that these

accidents most likely were staged. Hyde also would have been

alerted by the fact that, consistent with the attributes of a

paper accident, in neither the October 1 nor the December 20

accident were first responders summoned or independent witnesses

identified.
14

When Lopez and Castillo made a point of informing Hyde that

they were both involved and would split the referral fees

associated with the December 20 accident, that also signaled

that this accident was not legitimate. The jury reasonably

could infer that Hyde would have understood a fee-splitting

arrangement between two individuals known to produce staged

accidents to mean that both had participated in creating it.

Hyde also would have realized when he submitted the claims to

the insurers that the clients he obtained from these accidents

had accumulated substantial medical bills for the treatment of

relatively minor injuries from which they were slow to recover;

and Hyde, no less than the insurers that ultimately denied the

claims, also would have noticed that the damage to the vehicles

and the participants' stories did not coherently explain the

alleged events.

The jury also could consider Hyde's behavior in handling

the claims. Although Hyde was the attorney of record on both

cases, he met with none of the clients he received from the

October 1 and December 20 accidents. Instead, he assigned his

associate, Nieves, to handle all of the personal interactions

with them. The jury reasonably could infer that this was Hyde's

way of distancing himself from claims he knew to be fraudulent.

Also indicative of Hyde's knowledge was his failure to challenge
15

the insurers' denials; instead he promptly abandoned the cases

and the clients.

Hyde emphasizes that the above attributes also could be

consistent with legitimate accidents. However, the aggregation

of so many telltale indications sufficed to permit the

conclusion that Hyde knew that the October 1 and December 20

accidents were fictitious. As this court stated in another case

involving an attorney's submission of fraudulent automobile

insurance claims, "[w]hile each factor by itself likely would

not be enough to support conviction," the "circumstances

present[ed] sufficient evidence of knowledge . . . for a

rational jury to find the defendant's guilt beyond a reasonable

doubt." Commonwealth v. Lonardo, 74 Mass. App. Ct. 566, 570

(2009).8

Hyde's further argument, that the judge erroneously

employed a lower standard than "actual knowledge," is also

without merit. The record reflects that the judge plainly

utilized an actual knowledge standard in ruling that the

8
Hyde accurately points out that Lonardo arose in somewhat
different circumstances. The defendant in that case was
convicted of conspiracy to commit automobile insurance fraud,
and not, as here, of substantive crimes. In the present case,
although Hyde, Kaplan, and Castillo originally were charged with
conspiracy, those counts were not tried, and later were placed
on file with the defendants' consent. Despite this distinction,
however, the basic underlying principle is the same. In proving
its case the Commonwealth was not required to adduce direct
evidence of the defendant's knowledge.
16

Commonwealth's case was sufficient to go to the jury.

Notwithstanding some back and forth discussion of the potential

applicability of the evidentiary principle of "willful

blindness,"9 the judge explicitly decided the motion for required

findings based upon his assessment that "the evidence is such

that the jury could infer actual knowledge with respect to these

two episodes."

The judge's consistent application of the actual knowledge

standard is further shown by his final charge, where he told the

jury repeatedly that the Commonwealth was required to prove that

Hyde had "actual subjective knowledge" that the statements he

made to the insurers were false, and that it was not enough for

the Commonwealth to establish that he was "naive or negligent in

pursuing the truth." Later, when the jury asked during

deliberations whether they needed specific evidence for a

specific indictment, the judge again informed them that it was

9
Under this principle, an individual's knowledge may be
inferred if he intentionally closed his eyes to what would have
been obvious to him. "A willful blindness instruction is
appropriate when (1) 'a defendant claims a lack of knowledge,'
(2) 'the facts suggest a conscious course of deliberate
ignorance, and' (3) 'the instruction, taken as a whole, cannot
be misunderstood [by a juror] as mandating an inference of
knowledge.'" Commonwealth v. Mimless, 53 Mass. App. Ct. 534,
544 (2002), quoting from United States v. Hogan, 861 F.2d 312,
316 (1st Cir. 1988). Attentive to the defendants' arguments,
and concerned that instructing on willful blindness conceivably
could give the jury the erroneous impression that they did not
have to find actual knowledge, the judge here ultimately decided
not to give such an instruction.
17

not enough for the Commonwealth to prove beyond a reasonable

doubt that the defendant knew that false statements were made in

connection with other accidents; the Commonwealth was required

to prove that a false statement was made with respect to the

accident under consideration and that the defendant had actual

knowledge that the statement was false. The judge also

recharged the jury at length on appropriate and inappropriate

inferences, and again explained that any inference establishing

an element, such as knowledge, must be drawn beyond a reasonable

doubt.

b. Evidence of other staged accidents. Hyde argues that

it was unduly prejudicial for the jury to hear evidence of

another staged accident alleged to have occurred on October 10,

2002, which was uncharged as to him.10 Clients from this

accident were brought to Hyde's firm, but the claims were

processed by Hyde's partner, Carl Berger. The judge initially

declined to exclude the evidence on the expectation that the

Commonwealth would establish that Hyde knew about that accident

or was connected with it in some way. However, at the end of

the trial, the judge ruled that the Commonwealth had shown no

such connection between Hyde (or Castillo, for that matter) and

the October 10 accident, and charged the jury accordingly.

10
Only Kaplan was charged in connection with that accident.
18

The judge told the jury that in considering the charges

against Hyde, the jury could not consider any evidence

concerning the October 10, 2002, accident, "because there's no

evidence that Mr. Hyde had any involvement in that matter nor,

in fact, is there any evidence that Mr. Berger himself was aware

that anything was amiss, if in fact it was amiss, with respect

to that accident." He then repeated the instruction for

emphasis a moment later. We are confident that any conceivable

prejudice to Hyde from the admission of evidence about the

October 10 accident was prevented by these pointed instructions.

Hyde also alludes in a footnote to evidence of two other

uncharged accidents dated January 16, 2002, and March 16, 2002.

Because "[a]rguments relegated to a footnote do not rise to the

level of appellate argument," we need not consider his argument.

Commonwealth v. Springfield Terminal Ry. Co., 80 Mass. App. Ct.

22, 42 n.32 (2011) (citation omitted). In any event, Hyde has

demonstrated no abuse of discretion in admitting evidence of

these staged accidents, which was necessary to establish

important background facts about the scheme, including the

origin of concerns about the number of people in a vehicle and

Lopez's transition to staging paper accidents.

c. Grand jury issues. Hyde renews his claims, rejected by

the trial judge, that he was entitled to the allowance of his

motion to dismiss the indictments. He first claims that the
19

grand jury heard no direct evidence that he knew that the

accidents for which he was indicted were staged, and, therefore,

his motion should have been allowed pursuant to Commonwealth v.

McCarthy, 385 Mass. 160 (1982). Hyde does not dispute that the

testimony of several witnesses (including Ortega and two other

referrers who brought him clients from staged accidents)

established that, in other instances, he knew that he was

representing clients whose claims were not legitimate. His

argument is that, as to the October 1 and December 20 accidents,

the Commonwealth impermissibly asked the grand jury to infer

guilty knowledge based upon evidence of wrongdoing at other

times, and that everything he did with respect to the October 1

and December 20 accidents "was as consistent with processing a

legitimate case as processing a known fabricated accident."

In reviewing the evidence before the grand jury we keep in

mind that "an indictment requires a finding of probable cause."

Commonwealth v. Riley, 73 Mass. App. Ct. 721, 726 (2009). This

is a far lower standard than that needed to survive a motion for

a required finding of not guilty at trial. "The quantum of

evidence required to indict and commence prosecution is . . .

considerably less exacting than that required of the petit jury

that adjudicates guilt." Ibid.

Here, the circumstantial evidence of Hyde's knowledge about

the October 1 and December 20 accidents was of substantially the
20

same character as the trial evidence previously discussed.

Ortega and two other referrers testified generally about staging

accidents and to conversations with Hyde reflecting his

awareness that he was receiving clients from accidents that were

not legitimate. Ortega testified that, after staging an

accident and bringing the participants to the chiropractor, he

would call Hyde's office to make sure that Hyde was there, bring

in the participants, and give Hyde the accident report. Hyde

would meet with Ortega and Lopez privately in his office and

look through the report to make sure everything was in order.

Hyde would ask if the participants had been coached as to the

facts of the accident, and, on occasion, would dispense guidance

as to how best to set up the accidents so as not to raise any

flags. Ortega specifically testified that he had such closed

door meetings in connection with the charged accidents. This

testimony, as well as other evidence showing that the October 1

and December 20 accidents bore the earmarks of being staged,

permitted the grand jury to find probable cause to believe that

Hyde knew that the claims he submitted as a result of these

accidents were fraudulent. See Commonwealth v. Riley, 73 Mass.

App. Ct. at 731 ("grand jury may . . . infer[] . . . knowledge

and intent from all the facts and circumstances presented").

Contrast Commonwealth v. Reveron, 75 Mass. App. Ct. 354, 357-359

(2009).
21

Hyde also contends that the integrity of the grand jury

proceedings was impaired and, hence, his motion to dismiss

should have been allowed under Commonwealth v. O'Dell, 392 Mass.

445 (1984). However, "[t]o sustain a claim that the integrity

of the grand jury proceeding has been impaired, not only must

the evidence have been given with knowledge that it was false or

deceptive, but the false or deceptive evidence must probably

have been significant in the view of the grand jury and must

have been presented with the intention of obtaining an

indictment." Commonwealth v. Mayfield, 398 Mass. 615, 621

(1986). See Commonwealth v. Mathews, 450 Mass. 858, 876 (2008).

Hyde has not met these criteria here.

Hyde first points to the testimony of an investigator from

the Insurance Fraud Bureau, and, specifically, to the

investigator's testimony about so-called "runners." The

investigator testified to the effect that runners are people

who, under the direction of chiropractors and attorneys,

orchestrate staged accidents and recruit participants for those

accidents. Hyde argues that this testimony improperly implied

that the use of "runners" to bring in business was, in itself,

criminal. As the investigator explained, however, this was how

the term "runner" was used in the insurance industry, and the

investigator did not know how other people would define it.
22

Suffice it to say that the grand jury heard conflicting

testimony on this topic. Ortega testified along the same lines

as the investigator about the role of "runners." On the other

hand, there was testimony from two other witnesses that runners

are simply nonlawyers who bring in clients for a fee. The

function of the acknowledged "runners" in this case, including

Lopez and Ortega, ultimately was for the grand jury to decide

based upon the weight and credibility of the evidence.

Commonwealth v. Riley, 73 Mass. App. Ct. at 727.11

Hyde also points to the testimony of a witness who did not

speak English and who claimed to have spoken with Hyde about

staged accidents through a translator identified only as "Jose."

However, Hyde has not shown that the witness's testimony was

falsely or inaccurately presented to the grand jury in any way.

Even if it was left unclear how well Jose interpreted what Hyde

said to the witness, it was for the grand jury to evaluate the

strengths and weaknesses of this evidence.

Hyde also claims that the Commonwealth failed adequately to

inform the grand jury that Ortega had received inducements to

testify. Citing Commonwealth v. Mayfield, 398 Mass. at 620-621,

11
Another statement of the investigator challenged by Hyde,
that Hyde represented runners who brought accidents to him, was
true, even if not corroborated. Nor do other alleged
inaccuracies in the investigator's testimony rise to the level
of potentially affecting the fairness of the grand jury process.
23

Hyde characterizes such information as exculpatory evidence that

greatly undermined Ortega's credibility. However, we need not

reach the issue, because the grand jury knew full well before

voting on the indictments, that Ortega was benefiting from his

cooperation with the Commonwealth. It is true that the first

time he testified, on September 14, 2007, Ortega stated that

there were no promises made to him in connection with his

appearance at the grand jury proceedings that day. However, the

second time he testified, the Commonwealth asked him a series of

questions about his cooperation agreement, and Ortega admitted

that he had agreed to cooperate with the investigation and had

signed a letter to that effect on July 19, 2007. The agreement

then was presented to the grand jury.

In sum, it is questionable whether any of the challenged

testimony was seriously misleading; but even if the grand jury

heard inaccurate information, Hyde has failed to show that the

Commonwealth offered any testimony knowing that it was false or

deceptive, or that such testimony probably influenced the grand

jury's determination to indict.

2. Castillo's arguments. a. Sufficiency of the evidence

at trial. There is no merit to Castillo's argument that the

Commonwealth failed to prove that he knew that statements made

to insurance companies in connection with the December 20

accident were false. The evidence showed not only that Castillo
24

knew the December 20 accident was staged, but that he had

instigated that accident with the intention of financially

benefiting a friend.

Lopez testified that Castillo approached him about staging

the December 20 accident so that Castillo's friend, Ramirez,

could have his minivan totaled. Castillo told Lopez that he had

his party all set and that all he needed was an "at fault"

vehicle. Lopez and Ortega then found the at fault vehicle and

put together the staged accident. After the accident, Castillo

directed the people in Ramirez's vehicle to Kaplan and Hyde.

Lopez and Castillo went to Hyde's office together to inform him,

in person, that they were jointly involved and would split the

referral fee. This evidence was more than sufficient to

establish that Castillo knew and intended that false claims

would be submitted by Hyde. Any conflicts in the evidence as to

the nature and extent of Castillo's participation were for the

jury to resolve.

b. Admission of checks. Castillo was charged only in

connection with the December 20 accident. He therefore objected

to the introduction of Berger & Hyde, P.C., checks written to

him at other times, on the basis that the jury could draw an

unfair inference that the other checks also represented payments

for insurance fraud schemes that the defendant simply "didn't

get caught on." "Whether evidence is relevant and whether its
25

probative value is substantially outweighed by its prejudicial

effect are matters entrusted to the trial judge's broad

discretion and are not disturbed absent palpable error."

Commonwealth v. Simpson, 434 Mass. 570, 578-579 (2001). See

Mass. G. Evid. § 403 (2015). Here, the judge could conclude in

his discretion that the checks were highly probative of

Castillo's referral relationship with Hyde. Furthermore, the

admission of the checks was cumulative and nonprejudicial. Luke

Goldworm, an investigator with the Attorney General's Office,

testified to the same facts without objection or challenge on

appeal, i.e., that Berger & Hyde, P.C., had issued Castillo six

checks that totaled about $2,500.12

Judgments affirmed.

12
To the extent that we have not specifically addressed
subsidiary arguments in the defendants' briefs, they have not
been overlooked. "We find nothing in them that requires
discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).