CourtListener 10514605•In the Matter of a Grand Jury Investigation.
In the Matter of a Grand Jury Investigation.
CourtListener 10514605Massappct5 de mai. de 2025
Texto completo
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1285
IN THE MATTER OF A GRAND JURY INVESTIGATION.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2021, a Superior Court judge issued a search warrant
which authorized the State police officials assigned to the
Office of the Attorney General to freeze two bank accounts. The
judge determined, based on information contained in an
affidavit, that there was probable cause to believe that the
funds contained in these accounts constituted evidence of a
variety of crimes. In 2023, after an unsuccessful civil suit,1
the account holder moved for leave to intervene in an ongoing
grand jury investigation of the matter. The account holder also
1In 2022, the account holder commenced a civil action in
Superior Court against the Commonwealth and the Attorney
General, the gravamen of which was to seek the release of the
frozen bank accounts. After the denial of the account holder's
request for a preliminary injunction, the matter was ultimately
dismissed for failure to state a claim. The account holder did
not notice an appeal from that dismissal, and that matter is not
before us.
filed a motion for return of property. After a hearing, a
Superior Court judge denied the verified motion for leave to
intervene and did not address the motion for return of property.2
The judge also denied a subsequent motion for reconsideration.
The account holder appeals from the denial of both the motions
for leave to intervene and for reconsideration.3 We affirm.
Here, the judge held that the account holder's request to
intervene was neither supported by case law nor statutory
authority. He further noted that it was premature to even test
the validity of the underlying search warrant. At bottom, the
judge denied the motion "based solely" on the account holder's
lack of standing.
The Attorney General maintains that this is an
impermissible interlocutory appeal. The argument is not without
weight in that, in the event of an indictment, as the judge
noted, the validity of the search warrant may be tested. That
2 As the judge took no action on the motion for return of
property, there is no appealable order before us on that motion.
3 In his motion to intervene, in addition to seeking the
return of the seized funds, the account holder sought an order
requiring the Commonwealth to release to his attorney, under an
appropriate protective order, all documentation filed with the
court by the Commonwealth in connection with the search warrant,
and an order requiring the Commonwealth to provide the account
holder with "a full accounting of their doings with respect to
the property seized from [the account holder]." At oral
argument, the account holder waived these additional requests
for relief.
2
time has yet to arrive.4 See Maddocks v. Ricker, 403 Mass. 592,
597 (1988) ("there is no right to appeal from an interlocutory
order unless a statute or rule authorizes it"). The account
holder points us in the direction of Mass. R. Civ. P. 24 (a),
365 Mass. 769 (1974), which permits an interlocutory appeal of a
denied motion to intervene. Reznik v. Garaffo, 466 Mass. 1034,
1035 (2013); Holland Brands SB, LLC v. Bd. of Appeals of Boston,
103 Mass. App. Ct. 740, 743 (2024).
The Attorney General contends that this argument is waived
because the account holder's reliance on rule 24 (a) did not
appear until it was raised in the motion to reconsider. See
Commonwealth v Gilday, 409 Mass. 45, 46 n.3 (1991). However, we
need not resolve the waiver issue because Mass. R. Civ. P.
24 (a) does not apply outside the realm of civil litigation,
which this is not. Rather, grand jury proceedings are governed
by Mass. R. Crim. P. 5, as appearing in 442 Mass. 1505 (2004).
Rule 5 provides no mechanism for a putative target of a grand
jury investigation to intervene in that investigation, and the
account holder does not claim otherwise. In this sense, even if
the appeal is not interlocutory, the account holder lacks
4 Another way to view the matter is through the lens of
ripeness. See Commonwealth v. Hallinan, 491 Mass. 730, 751
(2023) (appellate court "will not review [a] matter until the
entire case is ripe for review due to the burdensome nature of
piecemeal appellate review" [quotation and citation omitted]).
3
standing or a mechanism to seek intervention. Indeed, the
Supreme Judicial Court has recognized that "intervention" is a
"concept foreign to criminal procedure." Republican Co. v.
Appeals Court, 442 Mass. 218, 227 n.14 (2004).
Finally, the account holder makes a facial and an as-
applied constitutional challenge to G. L. c. 276, § 3. Although
it does not appear that a single sentence in the motion to
intervene, which claimed that the statute was unconstitutional,
properly raises the claims he now makes on appeal, we need not
resolve the question of waiver because the judge did not rely on
G. L. c. 276, § 3, as basis for his decision. We sometimes have
discretion to review claims raised for the first time on appeal,
see Commonwealth v. Freeman, 352 Mass. 556, 563–564 (1967), but
such claims usually relate to a judge's reasoning and
justification for the resolution of the matter that was before
the court. Here, the judge denied the motion to intervene
solely on the basis of standing, and nothing was justified or
based on G. L. c. 276, § 3.
We further note that G. L. c. 276, § 3, which authorizes
the Commonwealth to retain funds seized pursuant to a search
warrant, also authorizes the return of property when that
property is no longer needed as evidence and where it is not
subject to forfeiture. See Commonwealth v. James, 493 Mass.
828, 833 (2024). See also Commonwealth v. Sacco, 401 Mass. 204,
4
207 n.3 (1987) ("Property seized pursuant to a search warrant
must be restored to its owners when it is no longer needed").
However, that time has yet to come in this case, and a judicial
order permitting intervention into the executive's investigative
prerogative would raise art. 30 concerns. See art. 30 of the
Massachusetts Declaration of Rights ("the judicial shall never
exercise the legislative and executive powers, or either of
them: to the end it may be a government of laws and not of
men").
Order denying verified motion
for leave to intervene
affirmed.
Order denying motion for
reconsideration affirmed.
By the Court (Meade,
Hodgens & Toone, JJ.5),
Clerk
Entered: May 5, 2025.
5 The panelists are listed in order of seniority.
5
Continue sua pesquisa no ChatGPT ou Claude
Conecte o Omnilex para pesquisar o corpus jurídico pelo seu assistente de IA.