NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

SJC-13353

COMMONWEALTH vs. JOSEPH SULLIVAN

(and a companion case1).

Hampden. February 6, 2023. - May 16, 2023.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, 

& Georges, JJ.

Misleading a Police Officer. Grand Jury. Constitutional Law, 

Grand jury, Indictment.

Indictments found and returned in the Superior Court 

Department on August 5, 2019.

Motions to dismiss were heard by Mark D. Mason, J.

The Supreme Judicial Court on its own initiative 

transferred the cases from the Appeals Court.

Jared B. Cohen, Assistant Attorney General (Stephen J. 

Carley & Dean A. Mazzone, Assistant Attorneys General, also 

present) for the Commonwealth.

Daniel D. Kelly for Joseph Sullivan.

Edward B. Fogarty for Derrick Gentry-Mitchell.

1 Commonwealth vs. Derrick Gentry-Mitchell.
2

WENDLANDT, J. The allegations in this case center on an 

alleged cover-up of an April 2015 altercation between off-duty 

Springfield police department (SPD) officers and four Black men 

(victims) near Nathan Bill's Bar & Restaurant in Springfield 

(Nathan Bill's). The victims were injured, at least one 

severely so; the Commonwealth contends that the off-duty 

officers assaulted the victims following a verbal argument at 

the bar. Investigations of the alleged misconduct of the offduty officers by local, State, and Federal authorities ensued; 

but, the Commonwealth maintains, the investigators were hampered 

by the false and misleading statements of responding SPD 

officers, including the defendant Derrick Gentry-Mitchell, and 

of other eyewitnesses, including the defendant Joseph Sullivan, 

who co-owned Nathan Bill's. According to the Commonwealth, the 

tangled web of deception by the defendants, and others, lasted 

years and included misleading testimony before the grand jury.

This case presents the question whether, where the grand 

jury were presented with numerous misleading statements made on 

various dates spanning several years to different investigators, 

an indictment charging a single count of misleading 

investigators, in violation of G. L. c. 268, § 13B, is defective 

under art. 12 of the Declaration of Rights of the Massachusetts 

Constitution, insofar as it poses the possibility that the 

defendants may be convicted of a felony for which the grand jury 
3

did not indict. Because the indictments charge the essential 

crime of willfully misleading investigators to impede the 

investigation of the same underlying event -- the off-duty 

police officers' alleged assault of the victim -- and because 

the misleading statements constituted a continuing course of 

conduct actuated by a single, continuing impulse or intent, or 

general scheme to conceal that event, we conclude that the 

indictments do not violate art. 12. Accordingly, we vacate the 

motion judge's order dismissing the indictments.

1. Background. We recite the facts presented to the grand 

jury in the light most favorable to the Commonwealth, reserving 

some details for subsequent discussion. See Commonwealth v. 

Stirlacci, 483 Mass. 775, 780 (2020) ("An appellate court 

reviews the evidence underlying a grand jury indictment in the 

light most favorable to the Commonwealth").

a. Assault. According to the Commonwealth, on the evening 

of April 7, 2015, and into the early morning of April 8, 2015, 

several off-duty SPD officers gathered at Nathan Bill's. After 

midnight, the officers argued with the victims. The defendant 

Joseph Sullivan, a co-owner and manager of Nathan Bill's, 

intervened and asked one of the victims to leave the bar.

Shortly after 1 A.M., SPD officers responded to a report of 

a disturbance outside of Nathan Bill's. Among the responding 

officers were the defendant Gentry-Mitchell and his partner, 
4

Jeremy Rivas, who together were on patrol that night. When the

SPD officers arrived, the victims were standing in the bar's 

parking lot, and other bar patrons and staff, including several 

off-duty SPD officers, were standing outside the bar's entrance. 

Sullivan spoke with some of the responding officers. Following 

a brief interaction, the victims walked away from the bar, the 

other bar patrons and staff went back inside Nathan Bill's, and 

the responding SPD officers left the scene.

Approximately one hour later, SPD officers responded to a 

911 call outside a convenience store located down the street 

from Nathan Bill's. The responding SPD officers, including 

Gentry-Mitchell and Rivas, found the same victims there that 

they had seen earlier that evening outside of Nathan Bill's. 

Two of the victims were lying on the ground. One was

unconscious. He had suffered a concussion, broken leg, 

dislocated ankle, torn ligaments, bruised head, and split lip; 

four of his teeth were knocked loose. The other victims were 

bruised; one had been shocked by a "taser" or "stun gun."

One of the victims told responding SPD officers: "We just 

got jumped by [the] guys from the bar. They just walked back to 

the bar." An emergency medical technician (EMT) at the scene 

later testified that, within earshot of the responding officers, 

including presumably Gentry-Mitchell, the victims were loudly 

"going on about how they just got into a bar fight and had just 
5

gotten beaten up by off-duty police officers." One of the 

victims later testified before the grand jury that the off-duty 

officers involved in the assault had used a racial slur before 

attacking the victims; the victims were Black men.

Rivas also testified before the grand jury. Rivas 

confirmed that he learned while responding to the scene outside 

the convenience store that the victims had been attacked by the 

same individuals with whom the victims had argued at Nathan 

Bill's, that off-duty officers were at the bar, and that the 

attackers "could have been police officers."

Rivas also testified that he and Gentry-Mitchell 

accompanied one victim back to the Nathan Bill's parking lot. 

When they arrived, they saw John Sullivan, a co-owner of the 

bar,2 and Jose Diaz, an off-duty SPD officer. According to 

Rivas, Diaz appeared to be drunk and stated that he had lost his 

keys; Rivas and Gentry-Mitchell helped Diaz search for the keys

while walking back toward the convenience store. Along the 

walk, Diaz stated that he and "some of the guys" had been 

involved in a fight outside of Nathan Bill's, and that he had 

been "knocked out cold" by one of the "[B]lack guys." Gentry2 John Sullivan and the defendant Joseph Sullivan are not 

related, but they co-own and comanage Nathan Bill's. We refer 

to Joseph Sullivan as "Sullivan" in this opinion.
6

Mitchell was within ten feet of Diaz when Diaz made these 

statements.

Rivas further testified that, later during their shift, he 

and Gentry-Mitchell spoke about the evening's events. Rivas 

relayed to Gentry-Mitchell that off-duty officers may have been 

involved in the assault on the victims.

b. Investigations. The victims repeatedly reported the 

assault to the SPD. Two local investigations ensued. One 

investigation was conducted by SPD's major crimes unit (MCU); 

the other investigation was conducted by SPD's internal 

investigations unit (IIU).3

In November 2016, one of the victims reported the incident 

and alleged cover-up to the Federal Bureau of Investigation 

(FBI).4 The FBI referred the matter to the Massachusetts 

Attorney General's office (AGO), and the two entities continued 

a joint investigation. In early 2018, the FBI and AGO brought 

their investigation before a Statewide grand jury. Over the 

course of grand jury proceedings lasting several months, more 

3 The MCU referred the results of its investigation to the 

office of the district attorney for the Hampden district, which 

declined to bring criminal charges related to the April 2015 

events.

4 After FBI agents in the Springfield regional field office 

investigated the matter, the United States Attorney's Office 

declined to pursue Federal criminal charges.
7

than three dozen witnesses testified, including, as explained 

infra, Gentry-Mitchell and Sullivan.

c. Misleading conduct. i. Gentry-Mitchell. On July 22, 

2015, Gentry-Mitchell submitted a report to MCU investigators; 

on August 16, 2015, he submitted a report to IIU investigators.5 

On February 22, 2018, he testified before the grand jury. On 

these three occasions, the Commonwealth alleges, Gentry-Mitchell 

falsely stated that he did not hear or see anything to indicate 

that off-duty officers might have been involved in the assault. 

Gentry-Mitchell did not disclose, in any of his three 

statements, that he saw Diaz after the assault, or that he 

learned any information from Diaz, Rivas, or any other source 

about the off-duty officers' involvement in the incident. These 

omissions, the Commonwealth alleges, were false and misleading,

and they hampered the investigations into the April 2015 

assaults.

ii. Sullivan. The Commonwealth further alleges that 

Sullivan also misled investigators. On June 19, 2015, in an 

interview with an SPD detective, Sullivan gave a statement in 

connection with the MCU investigation. On February 24, 2017, 

and May 16, 2017, Sullivan was interviewed by FBI agents. On 

March 15, 2018, he testified before the grand jury and made a 

5 Gentry-Mitchell did not file a police report on the night 

of the April 2015 incident.
8

statement to State police officers, FBI agents, and AGO

investigators prior to his testimony. The Commonwealth alleges 

that, on these four dates, Sullivan made false and misleading 

statements to investigators about the April 2015 incident, 

including about whether he could identify any patrons in Nathan 

Bill's that evening; whether he was aware that an altercation 

had taken place at the bar between two groups of patrons that 

evening; whether he knew the off-duty officers at the bar that 

evening; whether he noticed or was aware that any officers left 

the bar after the victims had left or whether the officers 

returned shortly thereafter; and whether he was aware that John 

Sullivan also left the bar, with the off-duty officers, and 

returned shortly thereafter.

The Commonwealth also alleges that Sullivan stated falsely 

that he called a taxicab for the victims when they left the bar 

and that he saw the victims enter and exit the taxicab (thereby 

suggesting misleadingly that the victims chose to remain at the 

scene instead of leaving). That factual account was not 

consistent with video evidence from a security camera outside 

Nathan Bill's, or with the testimony of multiple eyewitnesses, 

including the taxicab driver.

d. Grand jury indictments. In 2019, the grand jury 

returned indictments against sixteen individuals. Among those 

indicted were Gentry-Mitchell and Sullivan. Gentry-Mitchell was 
9

indicted on one count of perjury, one count of misleading 

investigators,6 and one count of making a false police report. 

Sullivan was indicted on one count of perjury and one count of 

misleading investigators.7

e. Motions to dismiss. Relevant to the present appeal, 

the defendants each filed a motion to dismiss the indictments

6 The indictment against Gentry-Mitchell for the offense of 

misleading investigators, in violation of G. L. c. 268, § 13B, 

provided:

"on or about the 22nd day of July in the year two thousand 

fifteen at Springfield, in the County of Hampden, or on or 

about the 16th day of August in the year two thousand 

fifteen at Springfield, in the County of Hampden aforesaid, 

or on or about the 22nd day of February in the year two 

thousand eighteen at Worcester, in the County of Worcester, 

[Gentry-Mitchell] did directly or indirectly, willfully 

mislead a police officer, investigator, or grand juror with 

the intent to impede, obstruct, delay, harm, punish or 

otherwise interfere thereby with a criminal proceeding" 

(emphases added).

7 The indictment against Sullivan for the offense of 

misleading investigators, in violation of G. L. c. 268, § 13B, 

stated:

"on or about the 19th day of June in the year two thousand 

fifteen at Springfield, in the County of Hampden, or on or 

about the 24th day of February in the year two thousand 

seventeen at Springfield, in the County of Hampden 

aforesaid, or on or about the 16th day of May in the year 

two thousand seventeen at Springfield, in the County of 

Hampden aforesaid, or on or about the 15th day of March in 

the year two thousand eighteen at Worcester, in the County 

of Worcester, [Sullivan] did directly or indirectly, 

willfully mislead a police officer, federal agent, 

investigator, or grand juror with the intent to impede, 

obstruct, delay, harm, punish or otherwise interfere

thereby with a criminal proceeding" (emphases added).
10

charging them with misleading investigators; they contended that 

the indictments violated art. 12.8 The Commonwealth opposed the 

motions, maintaining that the indictments were proper because 

they alleged that the defendants' misleading statements were 

part of a general scheme or single course of criminal conduct to 

mislead investigators regarding the April 2015 incident. In the 

alternative, the Commonwealth moved to amend the indictments.

Following a nonevidentiary hearing, the motion judge 

dismissed the indictments charging misleading investigators, 

relying on Commonwealth v. Barbosa, 421 Mass. 547 (1995). In 

particular, the motion judge concluded that, because the 

indictments charged multiple acts in a single count, they

presented the possibility that the defendants might be convicted 

of a felony offense without first being indicted of the same by 

a grand jury. He declined to amend the indictments, concluding 

that any amendment would not cure the defect.

The Commonwealth timely appealed. We transferred the 

matters to this court sua sponte.9

8 Gentry-Mitchell and Sullivan each also filed motions to 

dismiss the indictments for lack of probable cause; each motion 

was denied. The motion judge also denied Gentry-Mitchell's 

motion to dismiss the indictments for alleged loss or 

destruction of exculpatory evidence.

9 The defendants' cases were consolidated for the purposes 

of this appeal.
11

2. Analysis. We review determinations on issues of law in 

motions to dismiss de novo. Commonwealth v. Ilya I., 470 Mass. 

625, 627 (2015).

a. Article 12 framework. We have long construed art. 1210

to require "that no one may be convicted of a crime punishable 

by a term in the State prison without first being indicted for 

that crime by a grand jury." Barbosa, 421 Mass. at 549. See 

Jones v. Robbins, 8 Gray 329, 344 (1857) (art. 12 right is 

"justly regarded as one of the securities to the innocent 

against hasty, malicious[,] and oppressive public prosecutions, 

and as one of the ancient immunities and privileges of English 

liberty"). See, e.g., Commonwealth v. Smith, 459 Mass. 538, 

543-544 (2011) (vacating conviction as violating art. 12 because 

indictment charged single count of armed home invasion, but did 

not specify alleged victim or home, where grand jury and trial 

jury were presented with evidence of two separate, unrelated 

armed home invasions occurring on same specified date).

Accordingly, the offense as to which the grand jury have

found probable cause, and thus have charged in an indictment,

must be the same as the offense the Commonwealth seeks to prove 

at trial. See Barbosa, 421 Mass. at 551, quoting Commonwealth

10 Article 12 provides, in relevant part, that "[n]o subject 

shall be held to answer for any crimes or offence, until the 

same is fully and plainly, substantially and formally, described 

to him."
12

v. Dean, 109 Mass. 349, 352 (1872) ("It is the duty of the 

Commonwealth to prove the identity of the offence charged in the 

indictment with that on which it seeks to convict before the 

jury of trials").

i. Unrelated, separate acts. In Barbosa, 421 Mass. at 

551, we applied art. 12 in the context of an indictment charging 

a single offense where the grand jury heard multiple, unrelated

acts, each of which separately could constitute the charged 

offense. In particular, the grand jury had been presented with 

evidence that the defendant had engaged in two cocaine 

distribution transactions on the same date. Id. at 550. Other 

than occurring on the same date, the two transactions were 

unrelated, involving two different buyers and sharing neither a 

common intent nor a common theme. Id. at 548, 550. 

Problematically, the grand jury returned only one indictment 

that failed to specify which of the two transactions formed the 

basis for the charged offense; instead, "on its face, the 

indictment appear[ed] to refer to a single act of distributing 

cocaine." Id. at 551. Given that both incidents occurred on 

the same day, the inclusion of a date in the indictment did not 

clarify this ambiguity. See id. at 550 ("The result may be 

explained one of two ways. First, the grand jury may have found 

probable cause to indict the defendant for one of the . . . 

transactions, but not the other. Second, they may have intended 
13

the indictment to encompass both transactions"). See also

Campagna v. Commonwealth, 454 Mass. 1006, 1007-1008 (2009) (in 

Barbosa, it "was impossible to tell which of the two incidents 

gave rise to the indictment"). The defendant's pretrial motion 

to dismiss the indictment in violation of art. 12 was denied.11 

Barbosa, supra at 549, 553.

At trial, the jury found the defendant guilty of cocaine 

distribution. Id. at 549. Like the grand jury, the jury were

presented with evidence of the defendant's two separate and 

unrelated cocaine distributions, creating "the very real 

possibility that the defendant was convicted of a crime for 

which he was not indicted by a grand jury."12 Id. at 551. For 

example, the jury could have convicted the defendant based on 

11 The defendant moved to dismiss the indictment on the 

basis of "duplicity," which the court understood to preserve the 

defendant's objection to the indictment on the basis that it 

charged "several separate offenses in a single count." Barbosa,

421 Mass. at 553 & n.10, quoting R.M. Kantrowitz & R. Witkin, 

Criminal Defense Motions § 9.7 (1991).

12 The ambiguity could not be resolved by a bill of 

particulars. Barbosa, 421 Mass. at 553. The defendant was 

aware of the two incidents presented to the grand jury. Id. A 

bill of particulars would not have told the defendant which of 

the two formed the basis for the indictment. Id.

Neither could the defect be cured by requiring the 

Commonwealth to elect which of the two transactions it sought to 

pursue. Id. at 553 n.7 ("In the case that the grand jury had 

indicted on only one of the incidents, to require the 

Commonwealth to choose one incident could still have resulted in 

a trial for an unindicted offense").
14

the second transaction whereas the grand jury may have indicted 

the defendant on the first transaction, and vice versa.13 Id. at 

550.

Because "there [was] a substantial risk that the defendant 

was convicted of a crime for which he was not indicted by a 

grand jury," Barbosa, supra at 554, the convictions "violated 

the requirement of art. 12 that punishment for 'infamous crimes' 

only be imposed after indictment by a grand jury," id. at 549. 

We concluded that we could not "apply a harmless error standard"

to such a constitutional violation. Id. at 554, quoting Stirone

v. United States, 361 U.S. 212, 217 (1960) ("depriving defendant 

of 'right to be tried only on charges presented in an indictment 

returned by a grand jury' is 'far too serious to be treated as 

13 We considered whether a specific unanimity jury 

instruction could cure the constitutional error. Barbosa, 421 

Mass. at 552. A general unanimity instruction "informs the jury 

that the verdict must be unanimous," and a specific unanimity 

instruction "indicates to the jury that they must be unanimous 

as to which specific act constitutes the offense charged." 

Commonwealth v. Conefrey, 420 Mass. 508, 512 (1995). See id. at 

513 ("where evidence of separate incidents is offered to the 

jury and any one incident could support a conviction, a general 

unanimity instruction may not suffice to ensure that the jury 

actually [do] reach a unanimous verdict"). We concluded that a 

specific unanimity instruction would not cure the defect because 

the intent of the grand jury remained unclear. Barbosa, supra. 

The jurors at trial "may have reached unanimity only on a 

transaction for which the defendant was not indicted," so "the 

defendant still may have been 'held to answer' for a crime not 

set forth in the indictment." Id. Compare Dean, 109 Mass. at

352 (where parties knew which of two assaults formed basis of 

indictment, proper jury instruction could have cured defect).
15

nothing more than a variance and then dismissed as harmless 

error'"). As such, we vacated the convictions. Barbosa, supra.

ii. Continuing offenses occurring at divers times and 

places. Critically, however, we differentiated the indictment 

in Barbosa, which charged two separate, unrelated drug 

distribution transactions and thus violated art. 12, from an 

indictment charging a "continuing offense occurring at several 

times and places over a period of time," which does not. 

Barbosa, 421 Mass. at 550-551, citing G. L. c. 277, § 32.14

A. General practice offense. Such offenses include

"continuing" offenses, which comprise a crime that is "the 

general practice, throughout the period of time alleged." 

Commonwealth v. Stasiun, 349 Mass. 38, 44 (1965). See, e.g., 

Commonwealth v. Runge, 231 Mass. 598, 599-600 (1919) (practicing 

medicine unlawfully); Commonwealth v. Peretz, 212 Mass. 253, 254 

(1912) (deriving support from earnings of prostitute); Wells v. 

14 General Laws c. 277, § 32, provides:

"An allegation that a crime was committed or that certain 

acts were done during a certain period of time next before 

the finding of the indictment shall be a sufficient 

allegation that the crime alleged was committed or that the 

acts alleged were done on divers days and times within that 

period."
16

Commonwealth, 12 Gray 326, 327 (1859) (keeping house of ill 

fame).15,16

B. Offense characterized by shared intent, pattern, or 

scheme. As we noted in Barbosa, "continuing offense[s]

occurring at several times and places over a period of time" 

also include sexual offenses based on several acts. Barbosa,

421 Mass. at 551 & n.6, citing Commonwealth v. Conefrey, 420 

Mass. 508, 511 n.6, 514 (1995) (indictment charging one count of 

indecent assault and battery on child "at divers times and dates 

during" 1986 proper despite victim's description of eight 

different acts of sexual assaults), and Commonwealth v. Comtois, 

399 Mass. 668, 669-671 (1987) (affirming convictions for sexual 

assault of one victim "on divers dates between September 21, 

1982, and October 4, 1983," and another victim on "divers dates 

between October 1, 1982, and February 27, 1983" where each 

15 For continuing offenses that comprise a general practice, 

time is an essential component. Double jeopardy protects a 

defendant from the government subsequently bringing an 

indictment covering time periods that overlap with the alleged 

time period, and at trial, only evidence of the offense from the 

time period alleged in the indictment is permitted. See 

Commonwealth v. Megna, 59 Mass. App. Ct. 511, 513-514 (2003) 

("Since time is an essential element of a continuing offense, 

the defendant can never again be punished for engaging in the 

same criminal practice during the time period described in the 

indictment").

16 We agree with the defendants that the indictments 

charging the misleading of investigators do not allege a 

continuing offense comprising a general practice.
17

victim testified to multiple incidents).17 Those types of 

offenses are characterized by a shared intent, pattern, or 

scheme, and thus are distinguishable from the two unrelated 

cocaine distributions in Barbosa.18

C. Single criminal episode. Nor is the art. 12 violation 

present in Barbosa mirrored where multiple acts are charged in 

an indictment as part of a single, continuing criminal episode

occurring close in time. See Commonwealth v. Smiley, 431 Mass. 

477, 479-480 (2000) (considering and rejecting art. 12 challenge 

and holding that single indictment charging one count of armed 

assault in dwelling was proper even though existence of two 

victims would have permitted separate indictments); Commonwealth

v. Crowder, 49 Mass. App. Ct. 720, 721-722 (2000) (rejecting

art. 12 challenge to indictment alleging single count of 

aggravated rape where grand jury heard evidence of four acts of 

forcible penetration because there was "only a single episode 

involving the same parties" and multiple acts of penetration 

"are part of a continuing criminal episode").

17 To be sure, neither Conefrey nor Comtois discussed art. 

12. See Barbosa, 421 Mass. at 552-553.

18 At trial, such an indictment may require a specific 

unanimity instruction to ensure the jury are unanimous as to the 

particular act underlying the offense. See Conefrey, 420 Mass. 

at 511-513 (vacating conviction where judge gave general 

unanimity instruction, not specific unanimity instruction, 

because "evidence of separate incidents [was] offered to the 

jury and any one incident could support a conviction").
18

Our decision in Smiley is instructive. Smiley, 431 Mass. 

at 479-480. There, the court considered a single indictment 

charging that the defendant "being armed with a dangerous 

weapon, namely a gun, did enter a dwelling house and while 

therein did assault the occupants with intent to commit a 

felony." Id. at 479. The record before the grand jury

supported that the defendant had committed the charged armed 

assaults against two victims. Id. Relying on Barbosa, the 

defendant contended that the Commonwealth was required to bring 

two separate indictments, one for each victim who had been 

assaulted. Id. at 479-480. The court acknowledged that the 

Commonwealth could have sought two indictments. Id. at 480. 

The offense, however, had transpired as one continuing criminal 

episode whereby the defendant entered a dwelling and therein 

assaulted both victims. Id. at 478-479. We rejected the 

defendant's art. 12 challenge, concluding instead that the 

Commonwealth was within its discretion in requesting and 

receiving a single indictment for armed assault in a dwelling. 

Id. at 480.

D. Single, continuing criminal impulse or intent, or 

general scheme. Similarly, we have concluded that an indictment 

is proper where it alleges discrete acts, occurring over a 

period of time, that are "actuated by a single, continuing 

criminal impulse or intent or are pursuant to the execution of" 
19

a "general scheme." Stasiun, 349 Mass. at 43-45 (concluding 

that indictment properly charged solicitation, in violation of 

G. L. [Ter. Ed.] c. 268, § 8, where it stated that solicitation 

occurred "at various times between January 31, 1959, and 

July 31, 1959, the exact dates being . . . unknown"). Applying 

this principle in Stasiun, we concluded that wrongful 

solicitation, comprised of multiple requests for a bribe over 

the course of months, could be charged as a single offense, id. 

at 45; in so doing, we disagreed with the dissent that the 

indictment violated art. 12, id. at 57 (Kirk, J., dissenting).

There, the victim desired to enter into a lease agreement 

to rent space in his building to the registry of motor vehicles. 

Id. at 40-41. Over the course of several months, the defendants 

(one of whom was a State official) requested that the victim pay 

a bribe to the official for the official's favorable vote on a 

lease. Id. at 41-42. All told, several such requests were 

made; the requests, which varied in the amount of the bribe 

sought, were made in separate locations, at different times, and 

by different combinations of the defendants. Id. at 41-42, 44. 

Yet, despite the separate incidents, each of which constituted a 

wrongful solicitation, in violation of the statutory 

prohibition, a single indictment issued, charging the defendants 

with one count of wrongful solicitation. Id. at 44.
20

We rejected the dissent's contention that the indictment 

violated art. 12.19 The indictment was proper; we explained that

"whether the request was repeated in one meeting, or in several 

meetings on a single day, or in meetings separated by days or 

weeks rather than minutes, each separate request was an integral 

part of the wrongful criminal solicitation, from one person, of 

one payment for one favor." Id. "Solicitation of a bribe 

[could] take the form of protracted negotiations," and "[a]n 

offer to give or accept a bribe, while it is outstanding, has a 

continuing effect." Id. at 45. Additionally, "the fact that 

all the solicitations related to the approval of the . . . lease 

. . . support[ed] the conclusion that there was one overall 

scheme." Id. The "essential" charge of the indictment was that 

the defendants on divers occasions solicited a bribe for the 

State official's vote on the lease.20 Id. at 47. See

Commonwealth v. Lee, 149 Mass. 179, 184 (1889) (indictment 

charging crime of obtaining goods "from time to time" by false 

pretense was proper because "the false pretense was a continuing 

19 The court rejected the conclusion of the dissenting 

justice that the indictment was "bad for duplicity in charging 

more than one offence in the same count." See Stasiun, 349 

Mass. at 57 (Kirk, J., dissenting).

20 Accordingly, we concluded, any defendant tried on that 

charge could not be tried again for that offense; if a 

defendant, charged with a single wrong occurring on multiple 

occasions, is acquitted on the charge, that "will end the matter 

in all of its aspects as to him." Stasiun, 349 Mass. at 47.
21

one, and applicable to each delivery"); Commonwealth v. Megna, 

59 Mass. App. Ct. 511, 514-515 (2003) (indictment properly 

charged defendant with "a single wrong," namely extortion, "a 

discrete crime, but with a continuing criminal impulse or intent 

or in the pursuit of a general scheme").

b. Application to misleading investigators charge. 

Similarly to Stasiun, 349 Mass. at 45, in the present action, 

the record before the grand jury warranted the conclusion that 

the defendants' discrete acts -- namely, their false or 

misleading statements to investigators -- were "actuated by a 

single, continuing criminal impulse or intent or . . . pursuant 

to the execution of a general . . . scheme"; accordingly, the 

acts may be charged pursuant to a single count of misleading 

investigators, in violation of G. L. c. 268, § 13B, as amended 

through St. 2010, c. 256, § 120.21 In particular, as presented 

21 General Laws c. 268, § 13B (1) (c) (iii), (iv), (v), as 

amended through St. 2010, c. 256, § 120, made it a felony to

"willfully . . . mislead[] . . . a judge, . . . grand 

juror, prosecutor, police officer, federal agent, 

investigator . . . [or] a person who is furthering a . . . 

criminal investigation, grand jury proceeding, trial, [or] 

other criminal proceeding of any type. . . with the intent 

to impede, obstruct, delay, . . . or otherwise interfere 

thereby, or do so with reckless disregard, with such a 

proceeding."

The statute was amended in 2018, in relevant part, to make it a 

felony to
22

to the grand jury, the Commonwealth's theory was that the 

defendants willfully misled investigators –- the MCU, IIU, FBI, 

AGO, and grand jury –- to cover up the alleged misconduct of 

off-duty SPD officers in connection with the April 2015 assaults 

on the victims. The defendants, according to the Commonwealth, 

made false and misleading statements that together wove an 

inaccurate narrative in order to hide the truth from 

investigators.22 Cf. Stasiun, 349 Mass. at 45. Although each 

misleading statement could form a separate charge for misleading 

investigators, the Commonwealth is not precluded by art. 12 from 

proceeding under one indictment, charging the essential crime of 

willfully misleading investigators to cover up the off-duty SPD 

officers' role in the assault on the victims on April 2015.23

"willfully . . . mislead[] . . . another person who is a 

. . . judge, . . . grand juror, . . . police officer, . . . 

federal agent, [or] investigator, . . . with the intent to 

or with reckless disregard for the fact that it may . . . 

impede, obstruct, delay, prevent or otherwise interfere 

with: a criminal investigation at any stage, [including] a 

grand jury proceeding."

G. L. c. 268, § 13B (b), as appearing in St. 2018, c. 69, § 155.

22 That the misleading statements are, in some particulars, 

inconsistent with one another is of no moment. See, e.g.,

Stasiun, 349 Mass. at 43-45 (permitting one solicitation 

indictment despite record showing three different bribery 

requests).

23 For this reason, the use of the disjunctive "or" to 

separate the dates on which the defendants' alleged misleading 

statements were made does not alter the analysis. These dates 

are not an essential element of the crime. See Megna, 59 Mass. 
23

The defendants mistakenly contend that because the alleged 

misleading statements were made to different investigators, art. 

12 requires that the Commonwealth proceed by separate 

indictments. Their contention is unsupported by our 

jurisprudence that allows indictments of continuing offenses 

occurring at divers times and places, discussed supra, or by the 

statutory language of the crime under which they were indicted. 

The statute setting forth the offense of misleading an 

investigator defined an "investigator"24 to include a "group of 

App. Ct. at 514. By setting forth the dates in the indictments, 

the Commonwealth provided notice to the defendants of the 

misleading acts underlying the essential crime charged -–

namely, that the defendants misled investigators by continuously 

telling a misleading narrative regarding the alleged assaults on 

April 2015. Cf. Commonwealth v. Dingle, 73 Mass. App. Ct. 274, 

277-282 (2008) ("or" in indictment did not create ambiguity 

where indictment was sufficient to enable defendant to 

understand charge and prepare his defense).

24 During the relevant time period, the statute defined an 

"investigator" as

"an individual or group of individuals lawfully authorized 

by a department or agency of the federal government, or any 

political subdivision thereof, or a department or agency of 

the [C]ommonwealth, or any political subdivision thereof,

to conduct or engage in an investigation of, prosecution 

for, or defense of a violation of the laws of the United 

States or of the [C]ommonwealth in the course of his

official duties."

G. L. c. 268, § 13B (2), as amended through St. 2010, c. 256, 

§ 120. The definition was modified slightly in 2018 to include 

gender-neutral language. See G. L. c. 268, § 13B (a), as 

appearing in St. 2018, c. 69, § 155 ("in the course of such 

individual's or group's official duties").
24

individuals" authorized to perform the function of "conduct[ing] 

or engag[ing] in an investigation" of "a violation of the 

law[]."25 G. L. c. 268, § 13B (2), as amended through St. 2010, 

c. 256, § 120. Thus, a violation of G. L. c. 268, § 13B, can be 

based on conduct of misleading multiple investigators. Article 

12's requirement is satisfied where the misstatements were 

actuated by a single, continuing criminal impulse or intent or 

pursuant to the execution of a general scheme; here, the 

Commonwealth contends that the defendants' conduct underlay the 

general scheme to conceal the alleged misconduct of the off-duty 

SPD officers in April 2015.26 Nothing in art. 12 precludes the 

Commonwealth from so proceeding. See, e.g., Smiley, 431 Mass. 

at 480 (indictment could charge armed assault on multiple 

25 Contrary to the defendants' argument, neither art. 12 nor 

G. L. c. 268, § 13B, requires a grand jury to indict for conduct 

misleading State officials investigating a violation of State 

law separately from conduct misleading Federal officials 

investigating a violation of Federal law. The statute concerns 

acts that impede "investigation[s]," regardless of whether an 

otherwise unimpeded investigation might have led to a Federal or 

State charge.

26 Gentry-Mitchell's assertion, without citation to any 

material in the record, that "the Commonwealth brought separate, 

distinct indictable offenses and not a continuing offense" is 

belied by the grand jury's decision to return one indictment for 

the continuing actions of the defendants each aimed at hiding 

the April 2015 events.
25

victims where offense could be characterized as occurring during 

one criminal episode).27,28

3. Conclusion. Accordingly, we reverse the order allowing 

the defendants' motions to dismiss the indictments and remand 

for further proceedings.

So ordered.

27 Given the Commonwealth's choice to proceed on this 

theory, double jeopardy would limit any conviction that results 

to one count of misleading investigators, even if multiple 

misleading acts were found by the jury. See Commonwealth v. 

Rollins, 470 Mass. 66, 74 (2014). Moreover, the Commonwealth 

would be precluded from prosecuting the defendants again for the 

same crime based on conduct preceding the indictments. See 

Stasiun, 349 Mass. at 45, 47 (any defendant tried on charge of 

soliciting bribery actuated with single, continuing criminal 

impulse or intent, or under general scheme, "could not again be 

tried for that offence").

28 Because we conclude that the indictments were proper, we 

need not reach the Commonwealth's alternative argument that the 

motion judge erred in denying the Commonwealth's motion to amend 

the indictments.